My many thanks to Eugene for allowing me a guest stay here at the Volokh Conspiracy to blog about Unprecedented. I attended law school at George Mason, and often felt like I had much of the VC as my faculty. It was an honor to blog among them.
There’s still time to hop onto the Unprecedented road show. Tuesday at noon I will be at George Washington Law School in the Moot Court Room, where I expect to finally broker a complete agreement with Orin Kerr about the proper role of the courts. (We may need Vladimir Putin to help iron out the kinks.) Wednesday at noon I will be at American University, and Monday I will be at Yale Law School. My schedule still has some dates for the Spring if any other schools are interested.
In parting, a few plugs. First, the Harlan Institute, a non-profit I run, has partnered with The Constitutional Sources Project (ConSource) to host the second annual Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on National Labor Relations Board v. Noel Canning Corporation. The grand prize for the winning team is a trip to Washington, D.C. to attend ConSource’s Constitution Day celebration in September 2014. Today, I had the honor of meeting the two winners from the 2013 competition who attended Justice Scalia’s lecture. Interested high school teachers and students can sign up for the competition here.
Second, the 5th season of FantasySCOTUS.net kicks off on the first Monday in October. We now have north of 15,000 people making predictions about all cases argued before the Court, along with our real-time prediction tracker (I’ve written about our accuracy in this article). Get your picks in early for Canning, Bond, Schuette, and others.
Third, I would like to flag an important First Amendment argument that is currently lurking, but will soon gain salience–is data speech? Several important recent works by from Jane Bambauer, Stuart Benjamin, and Tim Wu address this question. My new essay, titled “What Happens if Data is Speech,” considers the next question in this emerging area of the law. What happens next? I approach this inquiry from three angles. First, I explore how affording constitutional scrutiny to data-based outputs impacts the validity of data privacy laws. Second, I turn to the power of search engines, and consider which poses a greater threat to free expression: the lack of regulations of these powerful intermediaries, or the regulations themselves. As search engines evolve into decision engines, and more of our choices are informed by the outputs of these algorithms, this tradeoff becomes important based on what the search engines choose to reveal, and obscure. I conclude by offering a framework of how courts should treat algorithmic outputs for purposes of the First Amendment, based on their nexus with human interaction. I will be submitting this essay shortly.
I have a number of other articles in the works on topics including legislative responses to mass shootings for a symposium issue of the Connecticut Law Review, 3D Printing and the Second Amendment for a symposium issue of the Tennessee Law Review (a key application of how data and speech are connected), Kennedy’s Constitutional Chimera (blogged about earlier), the story behind United States v. Carolene Products (did you know that the Filled Milk Act was struck down in 1972), the implications of computer systems that can offer legal services (some good, some bad), and others. I encourage you to check out JoshBlackman.com, or follow me at @JoshMBlackman to keep apprised. Thanks for your interest!
Finally, in case you are totally bored, I embed several of the media events I’ve done for Unprecedented so far.
Last Friday, the Cato Institute held a book forum for Unprecedented. Many thanks to my good friend Ilya Shapiro for moderating, and Randy Barnett and Jeffrey Rosen for offering excellent commentary (and getting into a bit of a spirited discussion about whether there was any effort to intimidate the Chief Justice).
On Monday, September 9, I spoke at the Columbia University Federalist Society Chapter before a packed house. Professor David Pozen asked a number of excellent questions about the book.
Here is a Cato Daily Podcast with Caleb Brown, the voice of freedom:
Cross-Posted at Volokh.com (where it makes much more sense).