Josh Blackman | South Texas College of Law (original) (raw)
Papers by Josh Blackman
Abstract: Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson's quarter... more Abstract: Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson's quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today's most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson's own anti-jurisprudence.
Abstract: In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of u... more Abstract: In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of unconstitutionality and back. Along that rapid journey, lawyers and scholars from across the philosophical spectrum, who were so focused on developing, refining, and advancing constitutional arguments at breakneck speeds, were often unable to pause, and appreciate the monumental importance of what was happening.
The 50th state is poised to pass the “Steven Tyler Act.” The bill, named after—indeed, written by... more The 50th state is poised to pass the “Steven Tyler Act.” The bill, named after—indeed, written by—the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of a rock star or, perhaps, the Obama family.
Abstract: Historically, our understanding of how the public perceives the Supreme Court and its d... more Abstract: Historically, our understanding of how the public perceives the Supreme Court and its decisions has been somewhat generalized. Polling firms conduct surveys on a semi-regular basis about a few common questions: do people view the Supreme Court favorably, do they think the Court is too conservative or too liberal, what do they think about certain hot-button issues like abortion or affirmative action, and do they support or oppose a recent controversial decision (such as Bush v. Gore or Citizens United v. FEC).
Abstract: Adam Winkler's new book Gunfight tells the story of the battle over the right to bear a... more Abstract: Adam Winkler's new book Gunfight tells the story of the battle over the right to bear arms in America. The flow of Gunfight, which reads more like a page-turning novel than an academic work, can best be described as a finely designed tapestry-several intricately woven threads cross and intersect throughout the chapters to form a rich, full discourse of the story of gun rights and gun control in America. The first thread tells the captivating story of District of Columbia v. Heller.
Abstract: In Originalism and Sex Discrimination, Steven Calabresi and Julia Rickert make an uncon... more Abstract: In Originalism and Sex Discrimination, Steven Calabresi and Julia Rickert make an unconventional claim—that the Fourteenth Amendment, as it was originally understood, prevents the government from enforcing laws that discriminate on the basis of sex.
store.cato.org
Since John Paul Stevens' retirement in 2010, Stephen G. Breyer seems poised to becom... more Since John Paul Stevens' retirement in 2010, Stephen G. Breyer seems poised to become the leader of the Supreme Court's liberal wing. In the nine cases that split 5-4 along ideological lines in the Court's past term, Justice Breyer wrote four dissenting opinions—only one less than Justices Ginsburg, Sotomayor, and Kagan combined.
University of Pennsylvania Law Review …, Jan 1, 2010
2 0 1 2 126 market for jurisprudential speculation. During the October 2009 Supreme Court Term, o... more 2 0 1 2 126 market for jurisprudential speculation. During the October 2009 Supreme Court Term, over 5,000 members made more than 11,000 predictions for all eighty-one cases decided. Based on these data, FantasySCOTUS correctly predicted the outcome in more than fifty percent of the cases decided, and the top-ranked predictors forecasted seventy-five percent of the cases correctly. This essay explores the wisdom of the crowds in this prediction market and assesses the accuracy of FantasySCOTUS. ¶4
Cato Sup. Ct. …, Jan 1, 2009
... And quite apart from the originalist sympathies of some justices, there was the practical asp... more ... And quite apart from the originalist sympathies of some justices, there was the practical aspect of litigating before a Supreme Court on which sit intractable opponents of substantive due process--including, most notably, Heller's author.... The Slaughterhouse majority might have (temporarily) gotten away with killing the Privileges or Immunities Clause, but Justice Alito's plurality suggests that like Poe's tell-tale heart, the Fourteenth Amendment's central guarantee of liberty is beating loudly under the floorboards.... At oral argument, Scalia ...
works.bepress.com
“An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of... more “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority... A few instances will suffice to explain what I mean...[A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” 2
papers.ssrn.com
considered the juristic state of nature described by such authors as Hobbes, Pufendorf, and Locke... more considered the juristic state of nature described by such authors as Hobbes, Pufendorf, and Locke, he found much in them that he could not regard as truly natural. The trouble with such writers, he asserts in the foreword to the Second Discourse, is that they do not go far enough back in their search for the state of nature. They include, among other things, various psychological characteristics of man, such as cultivated reason and artificial passions, which belong to civilized life.").
cato.org
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. Josh Blackman is... more Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. Josh Blackman is the president of the Harlan Institute. ... This article appeared in The Detroit News on July 5, 2010. ... The Supreme Court's decision in McDonald v. Chicago is a big win for gun rights, but it's an even bigger victory for civil rights generally. ... In the wake of its prior ruling in the Heller gun rights case, it was not surprising that the Supreme Court rejected Chicago's far-reaching prohibition on private gun ownership. Legal scholars and even lay people widely ...
papers.ssrn.com
Abstract: Justice John Marshall Harlan taught at Columbian University, which later became George ... more Abstract: Justice John Marshall Harlan taught at Columbian University, which later became George Washington University from approximately 1891-1910. He primarily lectured in Constitutional Law, but also taught personal property law, torts, conflicts of law, ...
Abstract: The tiers of judicial scrutiny represent the Supreme Court's attempts to balance t... more Abstract: The tiers of judicial scrutiny represent the Supreme Court's attempts to balance three important concerns–individual liberty, collective safety, and social cost. The relationship between liberty and safety has been ably explored; however, considerations of social cost—a factor that has been integral in the Supreme Court's balancing of liberty and security—has been neglected. Understanding the interaction between liberty, safety, and social costs, reveals insight into how the Supreme Court has fashioned the tiers of scrutiny ...
Abstract Internet giant Google recently began photographing American streets with a new technolog... more Abstract Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout ...
Abstract: Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson's quarter... more Abstract: Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson's quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today's most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson's own anti-jurisprudence.
Abstract: In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of u... more Abstract: In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of unconstitutionality and back. Along that rapid journey, lawyers and scholars from across the philosophical spectrum, who were so focused on developing, refining, and advancing constitutional arguments at breakneck speeds, were often unable to pause, and appreciate the monumental importance of what was happening.
The 50th state is poised to pass the “Steven Tyler Act.” The bill, named after—indeed, written by... more The 50th state is poised to pass the “Steven Tyler Act.” The bill, named after—indeed, written by—the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of a rock star or, perhaps, the Obama family.
Abstract: Historically, our understanding of how the public perceives the Supreme Court and its d... more Abstract: Historically, our understanding of how the public perceives the Supreme Court and its decisions has been somewhat generalized. Polling firms conduct surveys on a semi-regular basis about a few common questions: do people view the Supreme Court favorably, do they think the Court is too conservative or too liberal, what do they think about certain hot-button issues like abortion or affirmative action, and do they support or oppose a recent controversial decision (such as Bush v. Gore or Citizens United v. FEC).
Abstract: Adam Winkler's new book Gunfight tells the story of the battle over the right to bear a... more Abstract: Adam Winkler's new book Gunfight tells the story of the battle over the right to bear arms in America. The flow of Gunfight, which reads more like a page-turning novel than an academic work, can best be described as a finely designed tapestry-several intricately woven threads cross and intersect throughout the chapters to form a rich, full discourse of the story of gun rights and gun control in America. The first thread tells the captivating story of District of Columbia v. Heller.
Abstract: In Originalism and Sex Discrimination, Steven Calabresi and Julia Rickert make an uncon... more Abstract: In Originalism and Sex Discrimination, Steven Calabresi and Julia Rickert make an unconventional claim—that the Fourteenth Amendment, as it was originally understood, prevents the government from enforcing laws that discriminate on the basis of sex.
store.cato.org
Since John Paul Stevens' retirement in 2010, Stephen G. Breyer seems poised to becom... more Since John Paul Stevens' retirement in 2010, Stephen G. Breyer seems poised to become the leader of the Supreme Court's liberal wing. In the nine cases that split 5-4 along ideological lines in the Court's past term, Justice Breyer wrote four dissenting opinions—only one less than Justices Ginsburg, Sotomayor, and Kagan combined.
University of Pennsylvania Law Review …, Jan 1, 2010
2 0 1 2 126 market for jurisprudential speculation. During the October 2009 Supreme Court Term, o... more 2 0 1 2 126 market for jurisprudential speculation. During the October 2009 Supreme Court Term, over 5,000 members made more than 11,000 predictions for all eighty-one cases decided. Based on these data, FantasySCOTUS correctly predicted the outcome in more than fifty percent of the cases decided, and the top-ranked predictors forecasted seventy-five percent of the cases correctly. This essay explores the wisdom of the crowds in this prediction market and assesses the accuracy of FantasySCOTUS. ¶4
Cato Sup. Ct. …, Jan 1, 2009
... And quite apart from the originalist sympathies of some justices, there was the practical asp... more ... And quite apart from the originalist sympathies of some justices, there was the practical aspect of litigating before a Supreme Court on which sit intractable opponents of substantive due process--including, most notably, Heller's author.... The Slaughterhouse majority might have (temporarily) gotten away with killing the Privileges or Immunities Clause, but Justice Alito's plurality suggests that like Poe's tell-tale heart, the Fourteenth Amendment's central guarantee of liberty is beating loudly under the floorboards.... At oral argument, Scalia ...
works.bepress.com
“An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of... more “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority... A few instances will suffice to explain what I mean...[A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.” 2
papers.ssrn.com
considered the juristic state of nature described by such authors as Hobbes, Pufendorf, and Locke... more considered the juristic state of nature described by such authors as Hobbes, Pufendorf, and Locke, he found much in them that he could not regard as truly natural. The trouble with such writers, he asserts in the foreword to the Second Discourse, is that they do not go far enough back in their search for the state of nature. They include, among other things, various psychological characteristics of man, such as cultivated reason and artificial passions, which belong to civilized life.").
cato.org
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. Josh Blackman is... more Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. Josh Blackman is the president of the Harlan Institute. ... This article appeared in The Detroit News on July 5, 2010. ... The Supreme Court's decision in McDonald v. Chicago is a big win for gun rights, but it's an even bigger victory for civil rights generally. ... In the wake of its prior ruling in the Heller gun rights case, it was not surprising that the Supreme Court rejected Chicago's far-reaching prohibition on private gun ownership. Legal scholars and even lay people widely ...
papers.ssrn.com
Abstract: Justice John Marshall Harlan taught at Columbian University, which later became George ... more Abstract: Justice John Marshall Harlan taught at Columbian University, which later became George Washington University from approximately 1891-1910. He primarily lectured in Constitutional Law, but also taught personal property law, torts, conflicts of law, ...
Abstract: The tiers of judicial scrutiny represent the Supreme Court's attempts to balance t... more Abstract: The tiers of judicial scrutiny represent the Supreme Court's attempts to balance three important concerns–individual liberty, collective safety, and social cost. The relationship between liberty and safety has been ably explored; however, considerations of social cost—a factor that has been integral in the Supreme Court's balancing of liberty and security—has been neglected. Understanding the interaction between liberty, safety, and social costs, reveals insight into how the Supreme Court has fashioned the tiers of scrutiny ...
Abstract Internet giant Google recently began photographing American streets with a new technolog... more Abstract Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout ...