I thought this was worth sharing:

To the Members of the Johns Hopkins Community,

On Monday, April 29, the Beach became the site of a Palestine Solidarity Encampment, one of many on campuses across the nation. The encampment concerns many Hopkins students, the Jewish community included.

The horrific attacks against Israel on Oct. 7 impacted us directly, with members of our community losing friends and family members. In the months since, we have mourned the loss of civilian lives - Israeli and Palestinian. We recognize the disheartening and disturbing conditions in Gaza. At the same time, we stand firm against Hamas - a terrorist organization committed to the destruction of the Jewish people.

While the Hopkins Jewish community possesses a variety of opinions regarding the Israel-Hamas war, we are committed to promoting peace, security and healing for all affected by this tragic war. But, irrespective of the conflict, it is unacceptable to risk the safety and security of students; the hatred espoused within the encampment puts every Hopkins student at risk.

Protesters - despite their stated desire to demilitarize both Gaza and Hopkins - call for violence against Jews. Some of these include:

• "There is only one solution: Intifada revolution."
• "Resistance is justified when people are occupied."
• "BPD, KKK, IDF, you're all the same!"
• "From the river to the sea, Palestine will be free."
• "Anytime somebody comes and tells you that in order for there to be justice in Palestine, that the illegal, racist settler colony of Israel needs to be wiped off the face of the earth, what are you going to say? [Crowd response:] 'Smash Zionism.' This is the task."
• Written on a tent in the encampment: "Theirs [sic] no such thing as a peaceful protest."
• On a sign at the encampment: "Zionism upholds Nazi ideology and white supremacy."
• "Some people think that victory is a ceasefire, these are people who haven't been paying attention because they've already shown that ceasefire just means pause. We're not here for a pause. Some people think that victory means peace, we think there's no such thing as peace without justice. And we know you only get peace and justice in victory. It means that your enemies have been defeated; it means that your enemies have been squashed; it means your enemies have been checked."

These are not calls for peace. These are not calls to improve the lives of Palestinian people. These are calls for violent attacks against all Jews: Jews in Israel, Jews in your classes, Jews in your community and Jews across the world.

These statements are antisemitic. We define Zionism as the right of the Jewish people to self-determination and statehood in our ancestral homeland. Denying this right is antisemitic. Denying our religious connections to the land is antisemitic. Calling for the destruction of the only Jewish state in the world "from the river to the sea" - home to 46% of the global Jewish population" - is antisemitic. It is unacceptable for outside parties to assert that something is not offensive to our community.

While encampments tokenize minority anti-Zionist Jewish voices to justify their rhetoric and actions, national polling consistently shows broad Jewish support for the state of Israel, and the Jewish community at Hopkins is no exception. Israel is a critical part of our Jewish identities, and no student should be targeted based on their identity.

Calling the intifada - periods of intense violence, terrorist attacks and suicide bombings against Israeli civilians - "resistance" is sickening. Saying that all resistance, including the use of murder, rape and kidnapping is "justified" is not representative of the values of the University, Judaism or the United States. Referencing the Nazi ideology of the Final Solution is blatantly antisemitic.

Yet, these statements are regularly proclaimed in front of a defaced Hopkins sign for all Jewish and non-Jewish students to hear by people hiding their identities. Many protesters may not know what they are chanting - the connotations, allusions and meanings behind phrases thrown out by a faceless leader. You may not know what you are saying, but the groups who created these chants did - and Jews do too. We encourage everyone, protester or not, to do their own research and critically evaluate what they are saying. Ignorance is not an excuse for hate; it is your responsibility to educate yourself.

For centuries, antisemitism has contained the consistent assertion that Jews are responsible for a culture's greatest evil. In Christian Europe, we were falsely accused of being Christ killers. In Nazi Germany, we were smeared as communist race polluters. In the Soviet Union, we were besmirched as greedy, capitalist bourgeoisie. Now, encampments label us as "settler colonizers" and "Nazis" committing a "genocide." These words pervade their rhetoric with ancient antisemitic tropes.

The violence hasn't been limited to words; it has extended into the physical realm. Protestors have reportedly assaulted a member of the Jewish community - which the encampment dismissed as "baseless." With their identity obscured and groupthink rationality, protestors suddenly lose accountability and act in ways that are completely unacceptable - here or on any other campus.

It is one thing to condemn antisemitism, but actions speak louder than words.

The encampment organizers brought protesters from the broader Baltimore community onto campus. We have repeatedly seen on other campuses non-student affiliates making encampments sites of violence and vitriol. The wide calls for non-affiliate participation and antisemitic rhetoric used by the protesters attracted hateful individuals to our campus, including one who waved a swastika on N. Charles St. on May 2.

It only takes one person with ill intentions for a student to get hurt. It only takes one person for consequences that can never be taken back.

It is a stressful time on campus. As the Board of the Jewish Student Association (JSA), we want to reiterate that all Jewish community members at Hopkins have a home at Hillel. We are here for you. We are a strong community and welcome every student: whether you come to JSA events every day or have never stepped foot in our doors.

Critical thought and intellectual humility are the only ways to break through dogmatism and ideological stubbornness. Escaping echo chambers and doing the hard work of analysis allows us to understand each other and this conflict far better than we ever could alone. We are inspired by President Daniels, who wrote on May 2, "But I believe the much harder work is to now move beyond the shouting, the slogans, the call and response, and to engage in a rigorous and open-minded way with the university community on the agenda for change that you propose."

The Jewish community welcomes respectful dialogue as we work towards a better future for Israelis and Palestinians.

The Board of the Jewish Student Association.

Note that on the mayor's orders, the Baltimore police will not provide any assistance to Hopkins in dispersing the encampment, despite the fact that it's a clearly illegal trespass, and that many of the people at the encampment have no affiliation with Hopkins, creating a very real safety concern. The mayor quite wrongly has consistently suggested that the encampment is protected by the First Amendment.

But I don't want to let President Daniels and the Hopkins administration off the hook. Since last Thursday, he has been threatening students who remain at the encampment with discipline, while providing amnesty for those who leave peacefully. So far, no discipline has been forthcoming.

Today Justice Kavanaugh spoke at the Fifth Circuit Judicial Conference in Austin. I was pleased this session was open to the press, and saw several reporters in the room. The Washington Post has an early report.

Chief Judge Richman interviewed Justice Kavanaugh. It was a very engaging exchange. I thought Richman ably showed off the Justice's personal side. There were many questions about Justice Kavanaugh's daughters, and we learned that he took them to both a Taylor Swift concert and a Caitlin Clark basketball game.

Generally, these sorts of presentations repeat the same bromides, but Justice Kavanaugh made some points that (I don't recall that) he had made before.

First, Justice Kavanaugh addressed the declining number of cert grants. This term there will be about 60 merits decisions. Kavanaugh said that his ideal number would be about 75, and he observed that he has been pointing out cases that he would grant. I've praised this practice. Most of these cases are not high-profile, but they signal that Kavanaugh is closely monitoring the petitions, and flags to litigants what cases may get a grant in the future. Kavanaugh also said it is somewhat unfair to compare the present-day Court with the Court in the early 1990s when there were ~150 cert grants per year. Kavanaugh reminded us that when Justices Brennan and Marshall were on the Court, there were far more cert grants in death penalty and CrimPro cases.

One point that Kavanaugh did not address, that I have thought a lot about recently, is the "join three." With that tradition, if three justices were willing to grant cert, a fourth would provide a courtesy fourth vote–the so-called "join three." Justice O'Connor, as I recall, would frequently provide a "join three." This was how many death penalty cases were granted: Justices Brennan, Blackmun, and Marshall would vote for cert, and they would get a join-three. On the present Court, we routinely see cases with three dissents from denial, suggesting that there is no courtesy fourth vote. By my count, Justice Barrett had only one dissent from denial–she seems the Justice most hesitant to grant cert. I don't know if the "join three" is dead and buried, but it may be a vestige of a prior time.

Second, Justice Kavanaugh addressed the emergency docket–giving a shout-out to Professor Vladeck, who was at the conference. Kavanaugh spoke at some length about his opinion in Labrador v. Poe, which I have written about before. In particular, Kavanaugh explained that the predominating factor for these emergency cases is likelihood of success on the merits, rather than the balance of the harms, which generally even out. He mentioned that he had joined Justice Barrett's opinion in Does v. Mills, which focused on cert-worthiness, but Kavanaugh downplayed that factor, as he did in Labrador. I think Kavanaugh is exactly right. And that message was heard loud and clear by all the Fifth Circuit judges in the room.

Third, Justice Kavanaugh spoke about the process of drafting opinions. Kavanaugh explained that at conference, one of the hardest tasks is figuring out if there are five votes for a majority opinion–though he always favors unanimous opinions. As is well known, at conference each Justice gets to speak at least once before anyone speaks twice, starting with the Chief Justice. But after everyone speaks once, Kavanaugh said, it becomes something of a free-for-all. The Chief will call on people, like in school, Kavanaugh mentioned. Next comes the opinion writing process. Kavanaugh explained that when you see adverbs like "ordinarily" or "generally" in an opinion, those words were necessary to hold a majority opinion. Ditto for a footnote that seems to undermine everything the majority opinion said. Sometimes, Kavanaugh said, providing clearer resolution will have to wait for another case.

Fourth, Justice Kavanaugh addressed oral argument at the Court. For his first two terms, the Court followed the traditional one-hour limit. Kavanaugh said it felt frustrating when he would ask one question in a line of questions, and then get cut off by another Justice. Kavanaugh said he very much likes the new format, including the round-robin seriatim round. It lets him follow through on a line of questions from start to finish. He was also happy that Justice Thomas now has an opportunity to ask questions. Kavanaugh mentioned that not everyone is happy with the new format. He called out Paul Clement as one such skeptic; by contrast, Kavanaugh said, Lisa Blatt likes the format. (Clement & Blatt will give the SCOTUS roundup at the conference on Saturday morning).

Justice Kavanaugh also seemed quite relaxed and open. He was enjoying himself. The first five years of his tenure were remarkably chaotic. From the confirmation hearings to COVID to the assassination attempt, and everything in between. But he looked at ease now, and stayed afterwards to shake hands and take pictures with everyone. It is sometimes said that it takes a new Justice five years to find his or her rhythm. I think Kavanaugh is now hitting his stride. I've praised several of his opinions this year. I will, of course, reserve judgment till the end of June, but so far, this has been his most effective term on the Court.

Today a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit rejected Stephen Bannon's appeal of his conviction for contempt of Congress for failing to comply with a congressional subpoena. Judge Garcia wrote the opinion in United States v. Bannon, joined in full by Judges Pillard and Walker.

Here's how Judge Garcia summarizes the case:

In September 2021, the House Select Committee to Investigate the January 6th Attack on the United States Capitol issued a subpoena to appellant Stephen Bannon to testify and provide documents. Bannon did not comply—he knew what the subpoena required but did not appear or provide a single document. Bannon was later convicted of violating the contempt of Congress statute, 2 U.S.C. § 192, which criminalizes "willfully" failing to respond to a congressional subpoena. Bannon insists that "willfully" should be interpreted to require bad faith and argues that his noncompliance does not qualify because his lawyer advised him not to respond to the subpoena. This court, however, has squarely held that "willfully" in Section 192 means only that the defendant deliberately and intentionally refused to comply with a congressional subpoena, and that this exact "advice of counsel" defense is no defense at all. See Licavoli v. United States, 294 F.2d 207, 207 (D.C. Cir. 1961). As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress's investigatory authority. Because we have no basis to depart from that binding precedent, and because none of Bannon's other challenges to his convictions have merit, we affirm.

In responding to criticism of the question, the journalist says that he's not anti-Israel (see here), and I have no reason to doubt that. He also notes, "everyone struggles with some thoughts on this matter":

Eden Golan brings risk and danger to Malmo as a singer of her beautiful country—even if it is a broadcasting competition. Crazy supporters of Hamas can take advantage of the situation and the interest in the [Eurovision Song Contest] for various activities. This was the question and nothing else

Here's my thinking: Of course someone has to consider the risk posed by the presence of people who are potential targets for attack—whether prominent Israelis, or Salman Rushdie, targets of crazed nonpolitical stalkers, or anyone else. It's the job of security people to consider those very risks, in deciding how to effectively protect the event (and I hope not in deciding to exclude the potential victim). And of course other people may indeed struggle with their own thoughts on this matter. Worry about risk of violence is a natural human reaction.

But the implication of the journalist's question wasn't, I think, just "Did the risk cross your mind?" Rather, the implication was, "Shouldn't you feel obligated to stay away because of the risk that people might attack you and in the process injure bystanders?," with the answer to that implied question being "Yes."

And that, it seems to me, isn't right. A proper response to such threats of violence generally has to be to defy them, and not to allow them to control our lives, as a matter of law or as a matter of morals. On balance, a norm that requires people to give in to such threats, and to stay away from events because of the risk to bystanders, will cause more long-term harm than a norm that people have the right to ignore such bystander risk. (Just to be clear, if the target of the threat doesn't want to defy it, I don't want to add to her problems by insisting that she defy it—my point is simply that such defiance is a proper response, and not one that should be faulted.)

Here's an analogy from the legal world (and of course I realize that the journalist's question had to do with moral obligations, not legal ones). The case is Governors Ridge Office Park Association v. McBrayer (Ga. Ct. App. 2021), where neighbors sued an abortion clinic owner for nuisance, partly on the grounds that

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On Friday, the Supreme Court decided Warner Chappell Music, Inc. v. Nealy. This case involved the statute of limitations and remedies under the Copyright Act. The Copyright Act provides that a plaintiff must file suit "within three years after the claim accrued." 17 U. S. C. §507(b). When does a claim accrue? When the infringement occurred? Or when the plaintiff discovered the infringement? The circuits have divided on this question. Justice Kagan laid out the split:

Under the Copyright Act, a plaintiff must file suit"within three years after the claim accrued." §507(b). On one understanding of that limitations provision, a copyright claim "accrue[s]" when "an infringing act occurs." Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U. S. 663, 670 (2014). So a plaintiff can complain about infringements going back only three years from the time he filed suit. If that rule governed, many of Nealy's claims would be untimely, because they alleged infringements occurring as much as ten years earlier. But under an alternative view of the Act's limitations provision, a claim accrues when "the plaintiff discovers, or with due diligence should have discovered," the infringing act. Ibid., n. 4. That so-called discovery rule, used in the Circuit where Nealy sued, enables a diligent plaintiff to raise claims about even very old infringements if he discovered them within the prior three years.

Until fairly recently, I had never given this issue any thought. I never took an IP class in law school, and know very little about the subject. Until recently, at least.

In 2013, I published a blog post that included a copyrighted photograph. I had long ago forgotten about the post. And in the past decade, the post had about twenety views. Yet, in 2023, someone representing the copyright holder found the post, and sent me a demand letter. I promptly removed the copyrighted photograph, but the letter demanded that I pay damages.

My immediate reaction was, surely this claim was barred by the statute of limitations. But I did some research, and discovered there is a split of authorities about when a claim occurred. After giving the issue some thought, I reached a settlement, which disposed of all of the claims. Still, I was irked that courts had applied a discovery rule to the Copyright Act. My blog post was open to the public, was indexed by Google, was promoted on my social media channels, and could have been discovered shortly it was published. There was no attempt to conceal the information. It was, in the language of adverse and possesesion, open and notorious. (All of my posts are notorious.)

I wasn't the only person bothered by this rule. Warner Chappell Music's cert petition posed the following question presented:

Whether the Copyright Act's statute of limitations for civil actions, 17 U.S.C. 507(b), precludes retrospective relief for acts that occurred more than three years before the filing of a lawsuit.

But the Court would not resolve this issue. Indeed, the Court rewrote the question presented.

The question on which this Court granted certiorari is"[w]hether, under the discovery accrual rule applied by the circuit courts," a copyright plaintiff "can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit." Ibid. That question, which theCourt substituted for Warner Chappell's, incorporates anassumption: that the discovery rule governs the timeliness of copyright claims. We have never decided whether that assumption is valid—i.e., whether a copyright claim accrues when a plaintiff discovers or should have discovered an infringement, rather than when the infringement happened. See Petrella, 572 U. S., at 670, n. 4. But that issue is not properly presented here, because Warner Chappell never challenged the Eleventh Circuit's use of the discovery rule below.

Justice Kagan suggests in Footnote 1 the discovery rule issue was waived. She seemed annoyed:

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Throughout the recent campus tumult, media outlets have always been careful to say the Jewish students are part of the "mostly peaceful" protests. The press has dutifully reported about shabbat dinners and Passover seders at the encampments. The message is clear: how can these protests be anti-semitic if Jews are involved? Indeed, the Jewish students at these encampments insist that the Jewish faith is separate from Israel–they maintain that real Jewish values are inconsistent with Zionism.

These arguments have brought to the forefront an issue that has pervaded Judaism for millennia: there is no single Jewish religion. There is one Catholic church, and one set of doctrine. There are a range of protestant faiths, but when there are broad disagreements, there is a schism, and branches go in different directions. (For an example, look at recent developments in the Methodist church). But for Jews, a formal schism is impossible, and really unnecessary, because different groups within the faith can and have adopted radically different understandings.

This dynamic presented itself (trigger warning) in debates about Judaism and abortion. Some Jewish people claim that scripture imposes something like a religious obligation to have an abortion in certain circumstances. And, they asserted that RFRA compels the state to grant an exemption for women to have an abortion in those circumstances. Other Jewish people vigorously dispute and contest this reading of religious teachings. But for purposes of RFRA, it doesn't matter. The courts can probe sincerity of belief, but they cannot mediate what are and are not the tenets of a particular faith.

This history brings us back to Israel: is Zionism essential to Judaism? The Jewish students wearing kaffiyehs and N95s on the upper west side will tell you the answer is emphatically no.  Other Jewish students will say yes. Today, more than 500 Jewish students at Columbia signed a letter to explain why the occupiers have gotten Zionism so wrong.

I'll include some excerpts here, but you should read the entire letter:

Over the past six months, many have spoken in our name. Some are well-meaning alumni or non-affiliates who show up to wave the Israeli flag outside Columbia's gates. Some are politicians looking to use our experiences to foment America's culture war. Most notably, some are our Jewish peers who tokenize themselves by claiming to represent "real Jewish values," and attempt to delegitimize our lived experiences of antisemitism. We are here, writing to you as Jewish students at Columbia University, who are connected to our community and deeply engaged with our culture and history. We would like to speak in our name. . . . 

We proudly believe in the Jewish People's right to self-determination in our historic homeland as a fundamental tenet of our Jewish identity. Contrary to what many have tried to sell you – no, Judaism cannot be separated from Israel. Zionism is, simply put, the manifestation of that belief. . . .

Our religious texts are replete with references to Israel, Zion, and Jerusalem. The land of Israel is filled with archaeological remnants of a Jewish presence spanning centuries. Yet, despite generations of living in exile and diaspora across the globe, the Jewish People never ceased dreaming of returning to our homeland — Judea, the very place from which we derive our name, "Jews." Indeed just a couple of days ago, we all closed our Passover seders with the proclamation, "Next Year in Jerusalem!"

How do the Jewish students at the encampments respond to this article? I'm not entirely sure. You'd have to ask them. But one rather common approach is to simply disregard certain religious doctrines that are inconsistent with modern-day values. For example, on Yom Kippur, the tradition is to read a well-known passage from the Book of Leviticus: "Do not lie with a male as one lies with a woman; it is an abhorrence." Some temples have re-interpreted this provision such that it does not actually prohibit homosexual sodomy. Other congregations simply skip it. Yes, on the holiest day of the year, they just jump over the text, as if it is not there.

It is entirely possible to treat the connection between Judaism and Israel in the same fashion as some treat Leviticus 18:22. Again, there is no equivalent of a pope to mediate what the right Jewish reading of scripture is, or what the right Jewish understanding of Zionism is. Ditto for how Judaism addresses abortion and LGBT issues.

The letter makes several other important points, one of which I have advanced of late: antisemitism manifests itself in every generation in different ways:

This sick distortion illuminates the nature of antisemitism: In every generation, the Jewish People are blamed and scapegoated as responsible for the societal evil of the time. In Iran and in the Arab world, we were ethnically cleansed for our presumed ties to the "Zionist entity." In Russia, we endured state-sponsored violence and were ultimately massacred for being capitalists. In Europe, we were the victims of genocide because we were communists and not European enough. And today, we face the accusation of being too European, painted as society's worst evils – colonizers and oppressors. We are targeted for our belief that Israel, our ancestral and religious homeland, has a right to exist. We are targeted by those who misuse the word Zionist as a sanitized slur for Jew, synonymous with racist, oppressive, or genocidal. We know all too well that antisemitism is shapeshifting.

You should not blithely assume that because Jewish people are part of the protest, it cannot be anti-semitic. As we are reminded often, Justice Thomas, one of the most important African-Americans in American history, is racist because he opposes progressive views on race. Throughout history, regrettably, Jewish people have been on the side of antisemitism–often as part of an attempt to assimilate with the prevailing currents of modern society. There is nothing new under the sun.

A letter, currently with over 800 signatures, has been circulating among Jewish faculty to oppose the Antisemitism Awareness Act, in particular its codification of the use of the IHRA definition of antisemitism as a factor in determining anti-Jewish intent in Title VI cases. I wrote about the Act here, and explained that much of the opposition has been hysterical and counter-factual. If one had hoped an academic letter would be more reality-based, one would be disappointed.

The letter begins:

Criticism of the state of Israel, the Israeli government, policies of the Israeli government, or Zionist ideology is not – in and of itself – antisemitic.

We accordingly urge our political leaders to reject any effort to codify into federal law a definition of antisemitism that conflates antisemitism with criticism of the state of Israel.

This includes ongoing efforts to codify the International Holocaust Remembrance Alliance's (IHRA) working definition of antisemitism, which has been internationally criticized for conflating antisemitism with legitimate criticism of Israel.  

The IHRA definition of antisemitism, however, never says that criticism of Israel, etc., is "in an of itself" antisemitic. Indeed, it specifically says "criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic." (my emphasis) The fact that it's been "internationally criticized" for doing what it does not do is irrelevant, especially because many of those critics want to protect antisemitic criticism of Israel from charges that it's antisemitic. (Relatedly, I just saw a letter signed by over half the faculty at a respected liberal arts college. The letter, among other things, referred to Israel and Zionism as "Jewish supremacist." David Duke may have invented, but certainly has been the leading popularizer of, the notion that Israel is "Jewish Supremacist." If you go back a few years, he was pretty much the only person of any prominence using that phrase. May I point out that when you are borrowing memes about Israel from David Duke, it might be tainted with antisemitism?)

The letter continues:

Whatever our differences, we oppose the IHRA's definition of antisemitism. If imported into federal law, the IHRA definition will delegitimize and silence Jewish Americans–among others–who advocate for Palestinian human rights or otherwise criticize Israeli policies. By stifling criticism of Israel, the IHRA definition hardens the dangerous notion that Jewish identity is inextricably linked to every decision of Israel's government. 

The Antisemitism Awareness Act codifies the IHRA definition of antisemitism with regard to a narrow set of evidentiary issues in Title VI civil rights cases. But note that the Education Department started using the definition on its own initiative in 2018. President Trump signed an executive order in 2019, still in effect, requiring all federal agencies charged with enforcing Title VI to consider the IHRA definition when making or enforcing relevant law and policy.

Not only have Jewish critics of Israel, indeed Jews who don't think Israel should exist, not been silenced, it seems like they never shut up. The latter group is a tiny fringe of the Jewish community, but they appear disproportionately in both mainstream and social media.

And speaking of the media, no one who has been paying attention to any sort of media over the last few months could possibly believe that criticism of Israel has been stifled.

As for the "dangerous notion that Jewish identity is inextricably linked to every decision of Israel's government," this is a ridiculous strawman. I have never met a Jew of any variety who believes this, nor one who is in agreement with every decision of Israel's government. Indeed, many of the most passionate pro-Israel Jews are also the most critical of Israeli government policy, whether from the right or from the left, because they care.

I expect very little from the academy these days, so I'm not surprised to see over 800 signatories on this (at best) hyperbolic letter. I am at least a little disappointed to see some prominent law professors on the list, given that they should at least be cognizant that (a) the Antisemitism Awareness Act would not change the legal status quo; and (b) the legal status quo has not led to any of the parade of horribles predicted in the letter. But maybe I should reduce my expectations of the legal academy, too.

At Law & Liberty this week, I review Yale Law Professor Jack Balkin's new book on tradition in law, Memory and Authority. Tradition is having a moment in constitutional law, and Prof. Balkin offers an interesting and, in some respects, persuasive analysis. For example, he correctly observes that lawyers use tradition selectively, highlighting aspects of the past that support their clients' positions and downplaying others. (No great surprise there; lawyers want to win cases). He points out that traditions are often  contested and that appeals to tradition depend on listeners' identification with the past and desire to honor it–which isn't always the case, especially in 21st century America.

Notwithstanding these problems, though, Balkin argues that progressives like him should embrace traditionalism in law and adapt it to their own agendas. Prof. Balkin already considers himself an originalist; it turns out he is a traditionalist, too. I'm basically sympathetic to tradition in law, though I recognize the problems, and it's always nice to have allies. But Prof. Balkin's definition of tradition is so broad that it's not clear he's really talking about tradition at all:

[T]here are limits to how elastic tradition can be, and Balkin's own understanding of collective "constitutional memory" is so expansive that at times it hardly seems like tradition at all. For example, he praises Obergefell v. Hodges, which held that the Constitution confers a right to same-sex marriage, for its correct use of tradition. True, there is no "history of specific legal guarantees for same-sex marriage in American law." But he argues that American tradition should be understood in a broader, more sensitive way, as a commitment to animating principles. The Obergefell Court correctly saw that the reasons why Americans historically have supported marriage generally obtained in the new context of same-sex marriage as well, and applied those reasons to reach a satisfactory present-day result. One can "alter or even reject existing practices," he writes, "while being faithful to the country's traditions of liberty."

Now, one can praise or criticize the Court's reasoning in Obergefell. But to paraphrase something Grant Gilmore said about Oliver Wendell Holmes in a different context, the magician who can traditionalize Obergefell can, the need arising, traditionalize anything. Tradition refers to concrete practices and accommodations that endure across time in a community, not abstractions like "liberty" or "equality" or "dignity" or "justice." And one cannot plausibly claim that same-sex marriage is an American tradition in that sense. One must choose which traditions to follow and which to discard; that is the essence of modernity. But one cannot decide a case according to an abstract, indeterminate principle and call oneself a traditionalist. One may as well say that one is doing something new—that one is deciding a case based on one's normative commitments and leave it at that.

Memory and Authority encourages lawyers who have sympathy for the role of tradition in law to own up to the fact that they inevitably must pick and choose among the traditions that make up our legal heritage and to account for the objections of their fellow Americans who do not have the positive feelings about the past that they do. In that, the book is very valuable. In terms of constructing a persuasive argument for the use of tradition in law, though, the book does not really deliver. Balkin's "usable past" turns out to be much more about what is "usable" than what is "past," such that tradition seems to mean whatever broad principle works to get you to your present goal. That may be good or bad, but tradition it's not.

Interested readers can find the whole review here.