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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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I was interviewed by Houston Public Radio about Allen Stanford Ponzi Scheme Case at SCOTUS

February 27th, 2014

Apparently, being a constitutional law professor qualifies me to talk about a “covered security.” From my interview on KUHF Houston Public Radio:

Stanford’s victims have long argued that R. Allen Stanford could not have carried out his fraud without the help of a network of outside companies. But they ran up against a wall when trying to obtain relief in federal court. Josh Blackman teaches constitutional law at South Texas College of Law.

“The main problem was the securities which Stanford was selling them were not actually real securities. They were fake. They were fictional. The federal law would not permit the recovery for these fictional securities. They only permit recovery for actual covered securities.”

I also pre-taped a session on Houston Matters for Houston Public Radio about the Texas Same-Sex Marriage case. It should run today at noon.

 

Would a ban on Kosher Slaughter Be Constitutional, and Valid Under RFRA?

February 27th, 2014

In Poland, according to an animal protection law, animals must be stunned with a stun-gun prior to slaughtering. The European Convention for the Protection of Animals for Slaughter permits EU member countries to exempt religious slaughter from the stunning requirement. However, the Polish Parliament voted against granting the exemption. However, such a slaughter would not satisfy the rules of Kosher, which proscribe a very specific manner to kill an animal in accordance with Jewish Law.  As a result, it is effectively illegal to make kosher meat in Poland. Unsurprisingly, several slaughterhouses are violating the law, and doing it anyway.

Would this law be permissible in the United States, both in terms of the First Amendment and RFRA (I’m not asking whether it would ever be passed). I don’t think this would automatically fall under Church of Lukumi Babalu, as such a law was actually intended to protect animals, and not to punish a specific religion. Would a state law eliminating the ability to produce kosher meat place a “substantial burden” on faith? I’m inclined to say yes, though I’m sure opponents would say that kosher meat could be imported from out of state.

As the United States grapples with the extent of the Religious Freedoms Restorations Act in cases like Hobby Lobby, I suspect the conflict between religious beliefs and the mandates of the state will continue to crashing into each other.

Cross-Posted at Law & Liberty

Google, Represented by Katyal, Filed Emergency Motion Under Seal Seeking Stay of 9th Circuit’s Gag Order

February 27th, 2014

Wow. Judge Kozinksi’s opinion order Google to take down the “Innocence of Muslims” video has a bizarre backstory. The Hollywood Reporter has the story. Apparently on February 19, the 9th Circuit (before the opinion issued) ordered Google to take down all copies if “Innocence of Muslims,” along with an gag order, filed under seal, requiring the parties not to talk about it.

In response, Google (with lead counsel Neal Katyal) filed a “EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR AN ADMINISTRATIVE STAY PENDING THEIR PETITION FOR REHEARING EN BANC (UNDER SEAL).

Here is the intro of Katyal’s brief:

The Court yesterday issued an unprecedented sealed order directing that Defendant-Appellee Google Inc. take down the video “Innocence of Muslims” “from YouTube.com and from any other platforms under Google’s control and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” The Court further directed that defendants take these steps within 24 hours and that they were not permitted to disclose the Order until the ii merits opinion issues in this case. As explained below, defendants (and the public) will suffer irreparable harm to their First Amendment and other constitutional freedoms if defendants are not granted a stay pending their contemplated petition for rehearing en banc.

Katyal describes the sequence of events:

1 EMERGENCY MOTION Appellees Google Inc. and YouTube, LLC (Google) move for an order to temporarily stay the Court’s February 19, 2014, order in this matter. Appellees request that the Court’s ord er be stayed until 5:00 p.m. on Tuesday, February 25, 2014, so as to allow them to prepare a petition for rehearing en banc of the Court’s order (and accompanying motion for a stay pending en banc review). At present, Google and YouTube are endeavoring to comply with the Court’s Order, but they strongly believe this Court should issue an immediate administrative stay of the Order. In support of its motion, Google states: 1. This case was filed in the District Court on September 26, 2012, and was argued on June 26, 2013. The panel that heard the case has not yet issued an opinion deciding it on the merits. Yet at 5:46 p.m. yesterday, counsel for the Defendants received a two-paragraph order from the Court directing that Google “shall take down all copies of ‘Innocence of Muslims’ from YouTube.com and from other platforms under Google’s control, and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” The Court’s order further directed that Google must comply with in 24 hours of the Order ’s issuance— in other words, by 5:46 p.m. today

Katyal asked for a stay to permit Google to seek en banc review.

2 takedown process, until the opinion in this case issues.” Consistent with the intense secrecy surrounding the Order , it was not entered on the Court’s docket. 3. This Court should enter a short administrative stay to permit Google time to prepare a petition for rehearing en banc. A temporary stay is particularly warranted here because the panel’s order amounts to a dramatic , and highly unusual, intrusion on Google’s First Amendment and due process rights. It requires Google to remove a film from public display — a classic incursion on the First Amendment — without even telling Google why, and without any opinion explaining the rationale. The panel took this extraordinary step in an order that it placed under seal, making it difficult (to say the least) for Google to explain to the world why it is removing the Film from the public eye. And, last but not least, the Order imposes a restraint on Google that is broader than anything Ms. Garcia has even requested . …

This is, in short, a stunning order, both as a matter of substance and procedure.

The 9th Circuit denied this motion.

What a bizarre posture! Kudos to the speedy briefing by Katyal and counsel.

Protestor Protests Citizens United In Supreme Court

February 26th, 2014

Marcia Coyle has the story!

After Carter Phillips of Sidley Austin finished his argument in Octane Fitness v. Icon Health & Fitness and moved away from the lectern for his opponent’s rebuttal, a young man in suit and tie stood in the center aisle at the back of the courtroom and shouted:

“Money is not speech. Corporations are not people. Overturn Citizens United.”

Supreme Court police officers, who stand with watchful eyes in the courtroom, quickly moved to the rear, restrained the protester, and removed him from the courtroom. Noah Newkirk of Los Angeles later was charged with violating Title 40, section 6134: making “a harangue or oration, or utter[ing] loud threatening or abusive language in the Supreme Court Building.”

Some justices seemed momentarily startled by the outburst. But without skipping a beat, the chief justice informed Rudolph Telscher of Harness Dickey in St. Louis that he had three minutes remaining, and the composed Telscher launched into his rebuttal.

And Art Lien has the sketch.

 

 

Prop1 Class 12: Estates III: Leasehold and Defeasible Estates

February 26th, 2014

The lectures notes are here. The live chat is here.

This diagram represents the Fee Simple Defeasible, which comes with a Possibility or Reverter. For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action.

FSD

This diagram represents the Fee Simple Subject to Condition Subsequent, which comes with a Right of Re-Entry. For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land.

FSSCS

This diagram represents the Fee Simple subject to an executory interest, which comes with an executory interest, which is vested in a third person, instead of the grantor. For example, “O to “School board, but if it cease to use the land as a school, to the Library.”

fs-subject-executory-limitation

This is the grant at issue in Mahrenholz:

“this land to be used for school purposes only; otherwise to revert to Grantors herein.”

And a related case from the Texas Supreme Court:  El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013)

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back. Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was going to buy the land back. “El Dorado’s letter further asked the City within ten days to acknowledge its obligations under the deed and to suggest an acceptable closing date.”

The Texas Supreme Court held in El Dorado’s favor that the deed restriction was a “right of reentry,” which is a conditional future interest, and “property” under Texas law. The court relied on the reasoning of Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629 (Tex. 1987), a case with similar facts which held that “a future interest in real property is compensable” under the Texas Constitution’s Takings Clause. Slip op. at 6-7. In Leeco, the deed provided that the property would automatically revert if the county did not use it as a park. The court rejected the city’s attempt to distinguish the future interest at issue in Leeco from El Dorado’s, holding that it made no difference that in Leeco the interest was self-executing, and El Dorado’s interest gave it the right to repurchase.

This is the school at issue in the article about the Maeser School.

Maesr

 

maeser

 

Here is a picture of the Odd Fellows building:

fellows

toscanos

This chapter of IOOF seems to be gone. Presumably the grantors heirs exercised their right of reentry.