Publications

Visit my SSRN page to view all of my works.

Published Articles:

  • Josh Blackman, Original Citizenship, 159 U. Pa. L. Rev. PENNumbra (forthcoming 2010).
  • Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One, 56 Loyola L. Rev. 697 (2010). SSRN
  • The Tell-Tale Privileges or Immunities Clause, 2010 Cato Sup. Ct. Rev. 163 (2010) (Co-Authored with Alan Gura and Ilya Shapiro) SSRN
  • This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose, 20 Geo. Mason U. Civ. Rts. L.J.  351 (2010). SSRN
  • Youngstown’s Fourth Tier. Is There A Zone of Insight Beyond the Zone of Twilight?, 40 Memphis L. Rev. 541 (2010) (Co-Authored with Elizabeth Bahr). SSRN
  • Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual’s Image Over the Internet, 49 Santa Clara. L. Rev. 313 (2009). SSRN

Op-Eds:

Draft Articles:

  • Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction Between Holding & Dictum.SSRN
  • Justice John Marshall Harlan, Professor of Law: The Lecture Notes of Justice Harlan Revealed. SSRN
  • OutFoxed: Pierson v. Post and The Natural Law. SSRN
  • When Was the State of Nature? A Lockean Response to Rousseau’s Critiques. SSRN

Works In Progress:

  • Does the Constitution have a geography clause? Why should liberty mean different things in different places.
  • The Journal Clause and Legislative History
  • Legal Fictions. Why do we accept them, and why is it good to be false?
  • Regulatory Czars and the Appointment Clause.
  • Rethinking Footnote Four for the 21st Century.
  • The Law of Twitter. Law 2.0 for Web 2.0. Check out my musings on this point.
  • What does “Constitutional” Mean? Is it Constitution or Ought it Be Constitutional?
  • National Consensus and Constitutionality. Does the Constitution Change if Everyone Agrees?
  • Why the rational basis test is not a test at all, but an abstention doctrine. (Alternative title- Drop the charade. Rational basis test as a political question) Check out my musings on this point.
  • Analogizing Legislative History to Statements made during Oral Arguments by the Justices. Check out my musings on this point.
  • Are Members of SCOTUS Judges or Justices? Both text of Constitution and early cases use both terms. Check out my musings on this point.
  • Does the Constitution have a Geography Clause? Why do rights mean different things in different placing. Check out my musings on this point.
  • How does the Supreme Court Sniff out Purpose? Understanding Protectionist, Invidious, Secular, and Preemptive Intent Purposes. Check out my thoughts here.
  • Selective Originalism. Why do Originalists Pick and Choose When to be Original? Check out my thoughts here.
  • Original Crime. What was a Federal Crime in 1789? Check out my thoughts here.
  • De jure v. De facto. The Supreme Courts New Constitutional Distinction Du Jure
  • Power Over The Purse And The Sword. Can Congress Limit the President’s Foreign Policy Through the Foreign Commerce Clause
  • A Failure of Textualism. What happens when Congress no longer reads the Bills it Enacts?
  • When the Supreme Court appoints Counsel to Argue a Case. Why isn’t the case moot?
  • Thank you for being my friend. The role of amicus briefs at the Supreme Court.
  • Omniveillance Reloaded. The Right to your Digital Identity int he National Surveillance State
  • And many more to be posted in due time.
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