Episode 8 of the University of Miami School of Law's Constitutional Crisis Seminar features Professor Zachary Price, one the leading U.S. authorities on the subject of impoundments and other fiscal control strategies.
Zachary Price holds the Eucalyptus Foundation Endowed Chair at UC Law in San Francisco. His work ranges from constitutional law and administrative law to criminal and civil law enforcement. His recent scholarly work focuses on constitutional questions generated by current political polarization. Professor Price’s book "Constitutional Symmetry: Judging in a Divided Republic" was published in 2024.
His scholarly articles have been published in the Stanford Law Review Online, the Georgetown Law Journal Online, the Georgia Law Review, the Texas Law Review, twice in the Vanderbilt Law Review, and in the New York University Law Review Online.
Professor Price has contributed to the Wall Street Journal, Washington Post, Scotusblog, Notice and Comment, Administrative and Regulatory News, Law and Liberty, Balkinization, the Supreme Court of California Blog, the State and Local Government Blog, and the Take Care Blog.
In fall 2023, Professor Price was the Bruce Bromley Visiting Professor of Law at Harvard Law School. He has also held a fellowship at the Stanford Constitutional Law Center. Before entering teaching Prof. Price served for three years as an attorney in the U.S. Justice Department’s Office of Legal Counsel.
He has also worked as a litigator in private practice and clerked for Judge Catherine C. Blake of the U.S. District Court for the District of Maryland, Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit, and Justice Anthony M. Kennedy of the U.S. Supreme Court.
Professor Price graduated from Harvard Law School magna cum laude and from Stanford University with honors and distinction. Between college and law school, he studied philosophy as a Fulbright Scholar at the University of Copenhagen and worked for a Member of Congress.
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Episode 8 of the University of Miami School of Law's Constitutional Crisis Seminar features Professor Zachary Price, one the leading U.S. authorities on the subject of impoundments and other fiscal control strategies.
Zachary Price holds the Eucalyptus Foundation Endowed Chair at UC Law in San Francisco. His work ranges from constitutional law and administrative law to criminal and civil law enforcement. His recent scholarly work focuses on constitutional questions generated by current political polarization. Professor Price’s book "Constitutional Symmetry: Judging in a Divided Republic" was published in 2024.
His scholarly articles have been published in the Stanford Law Review Online, the Georgetown Law Journal Online, the Georgia Law Review, the Texas Law Review, twice in the Vanderbilt Law Review, and in the New York University Law Review Online.
Professor Price has contributed to the Wall Street Journal, Washington Post, Scotusblog, Notice and Comment, Administrative and Regulatory News, Law and Liberty, Balkinization, the Supreme Court of California Blog, the State and Local Government Blog, and the Take Care Blog.
In fall 2023, Professor Price was the Bruce Bromley Visiting Professor of Law at Harvard Law School. He has also held a fellowship at the Stanford Constitutional Law Center. Before entering teaching Prof. Price served for three years as an attorney in the U.S. Justice Department’s Office of Legal Counsel.
He has also worked as a litigator in private practice and clerked for Judge Catherine C. Blake of the U.S. District Court for the District of Maryland, Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit, and Justice Anthony M. Kennedy of the U.S. Supreme Court.
Professor Price graduated from Harvard Law School magna cum laude and from Stanford University with honors and distinction. Between college and law school, he studied philosophy as a Fulbright Scholar at the University of Copenhagen and worked for a Member of Congress.
"Constitutional Hardball" - Professor Mark Tushnet
University of Miami School of Law: Explainer
33 minutes 36 seconds
6 days ago
"Constitutional Hardball" - Professor Mark Tushnet
Episode 3 of the University of Miami School of Law's Constitutional Crisis Seminar features features Mark Tushnet, William Nelson Cromwell Professor of Law, Emeritus, at Harvard Law School. He is one of the giants of legal theory in the US academy. His extensive career ranges from clerking for Supreme Court Justice Thurgood Marshall to his current status as a professor at Harvard Law. He has made major contribution to the study of constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world, and the creation of other “institutions for protecting constitutional democracy.” He has written extensively in legal and particularly constitutional history, with works on the development of civil rights law in the United States and a history of the Supreme Court in the 1930s. Of note is his important work in the Critical Legal Studies movement—first in helping form the theory, then in both explaining it to the legal community, and also in some cases providing internal critique and exposition. Currently Professor Tushnet is working on several short pieces on authoritarianism and the law.
In this lecture, Professor Tushnet outlines the concept of “Constitutional Hardball” – something perhaps distinct from a ‘constitutional crisis’ -- a concept he first identified, and then developed in conversation with Jack Balkin, Sandy Levinson, and others.
Mark Tushnet outlines his theory of constitutional hardball. The key concept is that many constitutional practices are based on long-standing norms, not constitutional text. These norms can change and evolve, especially in periods of stress. And Presidents seeking to advance their agendas can push past limits set by norms without necessarily violating any written constitutional provisions. The tendency is that when a norm breaks to serve the interest of one political party, even when a different party takes power the norm is rarely if ever restored—although Tushnet notes that an exception is the two-term limit for Presidents, which was a tradition started by George Washington and then broken by Franklin Delano Roosevelt—only to be restored via the 22nd Amendment.)
Critically, while hardball pushes legal limits, and may involve controversial or disputed interpretations of Constitutional law, it clothes itself (arguably justly) in legality. Professor Tushnet argues that, so far at least, most of the Trump administration’s controversial actions are hardball; he therefore questions whether calling our current moment is not most usefully termed a ‘Constitutional crisis’.
Indeed, constitutional hardball is not, he argues, inherently bad. It can be a way to adapt a governmental structure to changing times and urgent needs. In normal times, the risk that once it gets into power the other party will exercise new power claimed by the executive also serves as a check, a form of tit-for-tat as described in game theoretic solutions to the prisoner’s dilemma. To the extent that the executive overreaches anyway, we have multiple mechanisms to push back including pressure from civil society, electoral pressure, and especially pressure or even noncompliance by states as they have great influence in a federal structure.
University of Miami School of Law: Explainer
Episode 8 of the University of Miami School of Law's Constitutional Crisis Seminar features Professor Zachary Price, one the leading U.S. authorities on the subject of impoundments and other fiscal control strategies.
Zachary Price holds the Eucalyptus Foundation Endowed Chair at UC Law in San Francisco. His work ranges from constitutional law and administrative law to criminal and civil law enforcement. His recent scholarly work focuses on constitutional questions generated by current political polarization. Professor Price’s book "Constitutional Symmetry: Judging in a Divided Republic" was published in 2024.
His scholarly articles have been published in the Stanford Law Review Online, the Georgetown Law Journal Online, the Georgia Law Review, the Texas Law Review, twice in the Vanderbilt Law Review, and in the New York University Law Review Online.
Professor Price has contributed to the Wall Street Journal, Washington Post, Scotusblog, Notice and Comment, Administrative and Regulatory News, Law and Liberty, Balkinization, the Supreme Court of California Blog, the State and Local Government Blog, and the Take Care Blog.
In fall 2023, Professor Price was the Bruce Bromley Visiting Professor of Law at Harvard Law School. He has also held a fellowship at the Stanford Constitutional Law Center. Before entering teaching Prof. Price served for three years as an attorney in the U.S. Justice Department’s Office of Legal Counsel.
He has also worked as a litigator in private practice and clerked for Judge Catherine C. Blake of the U.S. District Court for the District of Maryland, Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit, and Justice Anthony M. Kennedy of the U.S. Supreme Court.
Professor Price graduated from Harvard Law School magna cum laude and from Stanford University with honors and distinction. Between college and law school, he studied philosophy as a Fulbright Scholar at the University of Copenhagen and worked for a Member of Congress.
