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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Article on The Corporate Law Background of the Necessary and Proper Clause

November 30th, 2010

Here is the abstract of the article:

This Article investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early Federal periods bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these charters suggests the following: the Necessary and Proper Clause does not confer general legislative power; does not grant Congress unilateral discretion to determine the scope of its authority; requires that there be a reasonably close connection between constitutionally recognized ends and legislative means; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others. Although the historical evidence reported in this Article is by no means conclusive as to the meaning of the Necessary and Proper Clause today, it does provide valuable information about the meaning that lawyers of the Framing period would have attributed to the words of this important constitutional provision.

Interesting. This also may have some play on the erroneous notion that corporations never possessed rights viz Citizens United.

Alito on the Social Costs of a Court Order Releasing 40,000 Prisoners

November 30th, 2010

During oral arguments in Schwarzenneger v. Plata, Justice Alito had this to say about the social costs of a prison release order whereby 40,000 prisoners would be released.

JUSTICE ALITO: That is a very indirect way of addressing the problem and it has collateral consequences. If — if I were a citizen of California, I would be concerned about the release of 40,000 prisoners. And I don’t care what you term it, a prison release order or whatever the terminology you used was. If 40,000 prisoners are going to be released, you really believe that if you were to come back here 2 years after that, you would be able to say, they haven’t — they haven’t contributed to an increase in crime in the State of California? In the — in the amicus brief that was submitted by a number of States, there is an extended discussion of the effect of one prisoner release order with which I am familiar, and that was in Philadelphia; and after a period of time they tallied up what the cost of that was, the number of murders, the number of rapes, the number of armed robberies, the number of assaults -you don’t — that’s not going to happen in California?

Now  these social costs are not of a constitutional dimension (unlike the social costs involved with the First, Second, Fourth, and Fifth Amendments), as the relief is premised on the Prison Litigation Reform Act, and not the Federal Constitution.

Scalia to Sotomayor- “Don’t be rhetorical”

November 30th, 2010

Argument got rather heated today in Schwarzenegger v. Plata. In this case, the Supreme Court considers the problem of overcrowded California prisons.

In this exchange, Justice Sotomayor expressed her frustration at the slow pace California is addressing the problem. Justice Scalia quipped–without laughter–not to be rhetorical.

JUSTICE SOTOMAYOR: Can you do it in 5 years?
MR. PHILLIPS: I don’t know. I — you know, if — balancing all of the policies that the State has to take into account, can it get there and is that in the best interest of the State of California? If it is, yes, then we can get there.
JUSTICE SOTOMAYOR: Well, the best interest of the State of California, isn’t it to deliver adequate constitutional care to the people that it incarcerates? That’s a constitutional obligation.
MR. PHILLIPS: Absolutely. And California recognizes that.
JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
JUSTICE SCALIA: Don’t be rhetorical.
Justice Sotomayor, and to a lesser extent Justice Ginsburg, were quite vocal, launching many probing questions at Petitioner.
Update: Lyle Deniston reads the above exchange as Justice Scalia admonishing Mr. Phillips to avoid rhetoric. Because I was not present at arguments, my characterization may be incorrect, though I think the point stands.

The Constitutionality of Social Cost

November 30th, 2010

For some time, I have been comparing and contrasting the Supreme Court’s treatment of the Second Amendment with other constitutional rights. In my mind, the Second Amendment is treated as a (no pun intended) a second-class right. I have viewed this through the lens of the Second Amendment as “the most dangerous right”–because of the apparent dangerousness of guns, 2nd amendment rights should be treated with more caution. I have also considered more broadly whether rights were equal, or as I called it, the “equality of rights” (see here and here).

In this post–which is the basis for an article I am working on–I would like to focus on how the Supreme Court treats other rights that have certain social costs–or in economics lingo, negative externalities. The title of this post, of course, is a play on Coase’s classic article The Problem of Social Cost. This article provides an explanation of how the Court’s deal with the exercise of private rights that create certain social costs, and how this should affect our interpretation of the Second Amendment.

(more…)

JoshBlackman.com Selected for ABA Journal Blawg 100

November 29th, 2010

I am quite honored. The ABA Journal selected 5 blogs under the “Court Watch” category for the ABA Journal Blawg 100! JoshBlackman.com is selected alongside Bench Memos, First One @ One First, SCOTUSBlog, and The Justice Brenann Blog. Here is how the ABA describes my blog:

Josh Blackman’s Blog is an almost daily fix for constitutional law junkies. Posts cover con law as if it were a sport, so it should be no surprise that Blackman is the man behind FantasySCOTUS, which boasts more than 5,000 members who can try to predict SCOTUS outcomes.

Like my blog? Vote here. Josh for the win!