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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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Media Hits, Commentary, and Events (3/13/17 – 3/23/17)

March 24th, 2017

Over the past 10 days, my attention was focused primarily on the travel ban litigation and Judge Gorsuch’s nomination.  Here are my media hits, commentary, and events over this period. For highlights, I was a guest on All Things Considered and Lou Dobbs Tonight twice. Also, Rush Limbaugh quoted from my Lawfare post. (He referred to me as “some guy named Josh Blackman.”).

Commentary

  1. Why Courts Shouldn’t Try to Read Trump’s Mind, Politico Magazine (Mar. 16, 2017).
  2. The Legality of the 3/6/17 Executive Order, Part III: The Establishment Clause, Lawfare (Mar. 15, 2017).
  3. The Legality of the 3/6/17 Executive Order, Part II: The Due Process Clause Analysis, Lawfare (Mar. 12, 2017).

Events

Press

Guest on the Michael Berry Show to discuss Judge Gorsuch, the Supreme Court, and Mr. Smarty Pants

March 24th, 2017

The Michael Berry Show, which started in Houston, is now syndicated in over two-dozen markets. On Wednesday, Michael invited me to the studio to talk about Judge Gorsuch for (what he told me would be) 30 minutes. Little did I know that he had other ideas in mind. I was in studio for a full three hours–yes, the entire show!–to participate in a new feature he called “Mr. Smarty Pants.”

Listeners sent in questions on a whole range of topics–everything from horse breeding to well drilling–trying to stump me. It worked! My knowledge about the law is deep, though I am rationally ignorant about so many other areas of our world. In between the “Mr. Smarty Pants” segment, Michael asked me to discuss the Supreme Court, Judge Gorsuch, and the Constitution. Usually on the radio I am limited to 15 second sound bites. Here I could speak for minutes, uninterrupted. It is well worth the listen.

You can listen to the show here:

Property Midterm – Castaway, Modified

March 24th, 2017

My Property midterm exam was based, loosely, on the film Castaway. You can download the exam here, and the A+ paper here.

Instructions:

You are a mediator. Two castaways who were on a deserted island ask you to write an opinion of no more than 1,000 words, addressing five property disputes that arose between them. Because the island did not have any statutes or regulations governing the issues in this case, you can rely on any common law or natural law principles that American courts have cited.

—

Tom and Wilson set out to circumnavigate the world in a hot air balloon. Tragically, during a storm, their balloon crashed on a deserted island. All of their radio equipment was damaged, so they cannot signal for help. The two only have enough provisions to last for a few days.

The island is divided down the middle by a mountain range. Tom sets up camp on the north side of the island, and declares it Northacre. Wilson sets up camp on the south side of the island, and declares it Southacre.

There is a fresh-water river that begins on Northacre, flows across the mountain range through Southacre, and spills into the ocean. The river provides more than enough water to satisfy their personal needs, and both Tom and Wilson begin to draw water from it.

Wilson discovers that Southacre is inhabited by a pack of wild boars. At dawn, he begins tracking a boar. Wilson fashioned a spear out of a branch with a rock attached to the tip. He throws the spear at the boar, which grazes the beast’s tail. Frightened, the boar starts running toward the mountain range. Wilson follows it. Once the boar crosses onto Northacre, Tom sees it, and starts chasing it as well. As Tom and Wilson corner the beast, it jumps into the river and starts swimming downstream. At that moment, a freak winter storm arrives, and the temperature suddenly plummets. The river immediately freezes over. The boar is stuck in the river, frozen solid. Tom and Wilson both try to dig the boar out, but the ice is too thick. The next day, as the river thaws, the frozen boar floats downstream to Southacre. Wilson pulls it out of the water. Tom asserts that he has the strongest claim to the boar. Wilson disagrees; he skins the boar, which he makes into a coat, and eats the meat.

While the rocky soil on Northacre was dry, the soil on Southacre was very fertile. Wilson plant crops on Southacre, which, when harvested, would provide more than enough food for both residents on the island to eat. Wilson relies on the river to water the crops. Tom, still bitter about the boar, erects a dam on the river, thus blocking the flow of water to Southacre. Wilson demands that Tom remove the dam, stating that he also has a claim to the water. Tom refuses, destroying Wilson’s entire harvest.

Left without anything to eat, Tom begins to forage the beach of Northacre for food. While digging in the sand, he discovers a buried chest. Without removing the chest from the sand, he pries open the lid, and finds it is full of gold coins. Tom immediately realizes that the island was not as deserted as he had thought. As the sun was setting, Tom decides to wait until the morning to remove the chest from the sand. While Tom is sleeping, Wilson crosses the mountain and

removes all of the gold coins, and leaves the chest buried in the sand. Wilson then buries the gold coins on the sands of Southacre. Tom demands Wilson return the gold coins. Wilson refuses.

The next day, a box washes ashore on Southacre containing a sealed, fully-functional solar- powered flashlight. Wilson tells Tom about it. Tom asks Wilson if he can have it. Without writing anything down, Wilson says that he will use it for the rest of his life, and then Tom can have it. Tom agrees.

Later that year, Tom becomes ill, and writes the following conveyance: “I will continue to live on Northacre, but if I die, then to Wilson and his heirs.” Wilson accepts the conveyance.

Shortly thereafter, Tom makes a speedy recovery. Miraculously, a rescue boat locates the castaways. After they return to the United States, the duo hires you, a mediator, to resolve their disputes.

—

You are asked to prepare an opinion of no more than 1,000 words addressing the following five issues:

1. Who has the stronger claim to the boar’s skin? Tom or Wilson.

2. What is Tom’s strongest claim to the gold coins? What is Wilson’s strongest claim to the gold coins?

3. What are the present and future interests in the flashlight? 4. What are the present and future interests in Northacre?

5. How should Tom and Wilson have resolved the dispute over the erection of a dam on the river?

 

Constitutional Law Midterm – President Trump’s First Executive Order

March 24th, 2017

My constitutional law midterm was borrowed, nearly verbatim, from President Trump’s first executive order. We have not yet covered the Establishment Clause or Due Process, so the facts were tweaked to focus on the federalism issue. You can read the exam and A+ answer here. Enjoy.

Instructions:

The time is now. Shortly after President Trump’s inauguration, he issued an executive order concerning immigration, which gave rise to several legal disputes between the state of Washington and the federal government. You are a law clerk for Judge Robarts, who sits on the United States District Court for the Western District of Washington, in Seattle. He has asked you to prepare a memorandum of no more than 1,000 words addressing five issues affecting this case. In preparing this memo, please keep separate your personal feelings about the order from your analysis about these legal issues.

In response, Washington enacts the Immigration Resistance Act of 2017, which has two sections:

Section 1: A state official that provides the federal government with information concerning any immigrant in the state shall be guilty of a misdemeanor, and be liable for a fine of at least $1,000.

Section 2: A federal official that requests information from a state official concerning an immigrant in the state shall be guilty of a misdemeanor, and be liable for a fine of at least $1,000.

The Attorney General sent a letter to the Governor of Washington, stating that pursuant to 8 U.S.C. § 1373, the state’s decision not to share information about aliens in custody “would result in a loss” of $1 billion in grants, annually. Washington currently receives a total of $10 billion in federal grants each year, and the state’s total budget is $100 billion per year.

Several lawsuits are filed, all of which were consolidated in Judge Robarts’ court. He has asked you to prepare a memorandum of no more than 1,000 words addressing five issues affecting this case.

  1. Washington filed suit against the Attorney General, claiming that the decision to withhold $1 billion in funding violates the principles of federalism. Assess the constitutionality of the notice to withhold $1 billion in funding.
  2. The Attorney General challenged the constitutionality of Section 1 of the Immigration Resistance Act, asserting that it conflicts with 8 U.S.C. § 1373. Assess the constitutionality of Section 1 of the Immigration Resistance Act.
  3. The Attorney General challenged the constitutionality of Section 2 of the Immigration Resistance Act, asserting that it conflicts with 8 U.S.C. § 1373. Assess the constitutionality of Section 2 of the Immigration Resistance Act.
  4. Washington filed suit against President Trump, and other administration officials, asserting that Section 2 of the Executive Order was illegal. [Washington did not bring suit under the Free Exercise Clause, the Establishment Clause, the Due Process Clause, or the Equal Protection Clause]. The complaint asserts that Section 2 of the executive order violates 8 U.S.C. § 1152, which provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” President Trump defended his action, stating that § 1182 allows him to “suspend the entry of all aliens or any class of aliens as immigrants” that he finds “detrimental to the interests of the United States,” and he has the ultimate constitutional duty to keep the nation safe. Judge Robarts tells you that he is uncertain how to reconcile the conflict between § 1152 and § 1182. He asks you to address how Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer should inform this question of statutory interpretation.
  5. After the case is argued, but before it is decided, President Trump tweets about Judge Robarts: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Judge Robarts asks you to assess whether he should, or should not, address the President’s tweet in his opinion. Please give specific reasons, with reference to the Supreme Court’s history, to support your recommendation.

 

ConLaw Class 19 – Economic Liberty I

March 23rd, 2017

Class 19 – 3/23/17

Economic Liberty I

The lecture notes are here.

Lochner v. New York

Standing on the right is Joseph Lochner.

joseph-lochner

Here are photographs of Lochner’s bakery in Utica, New York.

lochner-bakery

lochners-bakery

Here is the cover of a recent book aimed at rehabilitating Lochner, which depicts Justice Rufus Pekham, author of the majority opinion, knocking out Justice Oliver Wendell Holmes, author of the famous dissent.
rehabilitating-lochner

Through sleuthing at the Oneida County Clerk’s Office, I discovered this advertisement for Lochner’s bakery. According to the ad, Lochner’s Home Bakery “is one of the oldest and most reliable bakeries in Central New York. We pride ourself on Uniformity, Purity, Cleanliness.”

Advertisement for Lochner's Home Bakery - Harlan Institute for Constitutional Studies

Buchanan v. Warley

Here is a headline from April 10, 1917 after Buchanan was argued.

Muller v. Oregon

Here is the Lace House Laundry from Muller v. Oregon.

muller-oregon

Here are workers inside the Lace House Laundry, courtesy of the Oregon Historical Society.

Muller-workers

Adkins v. Children’s Hospital of District of Columbia

Nebbia v. New York

This is grocer Leo Nebbia.