Blog

I have a lot of stuff going on in my life. Whenever people ask me what’s new, I find myself spending way too much time explaining my activities. For purposes of efficiency and economy, I will list here all of the things I am currently involved in. As I do more stuff, I’ll update this list.

1. First, and foremost, I am a law clerk for the Honorable Kim R. Gibson in the United States District Court for the Western District of Pennsylvania, in Johnstown. I love my job, and I love clerking here.
2. Second, I co-teach with Judge Gibson Federal Court Practice at the Penn State Dickinson School of Law (syllabus here).  I lecture each week for about 2.5 hours on a host of fascinating topics, and really enjoy interacting with the students in the class. You can listen to podcasts of my lectures here.
3. Third, I am the Czar of FantasySCOTUS.net (I did not require Senate Confirmation for that position, though trust me, I am a principal officer). I built this league by myself from the ground up in November 2009. I now have nearly 4,000 SCOTUS watchers who make predictions on all cases pending before the Supreme Court. I have been interviewed by CNN.com, WSJ Law Blog, and ABC News radio. Justice Breyer was even asked about FantasySCOTUS in an interview!  See more of my clippings here.
4. Fourth, I write a Weekly Column for the popular legal blog, AboveTheLaw.com. You can see my posts here. Many thanks to Corey Carpenter, who provides stellar number crunching and analysis for these posts.
5. Fifth, I am the blogger here, at JoshBlackman.com. At one point, I was writing 4-5 posts a day. But due to all of my other activities, I am down to a few posts a week. But I still receive some serious traffic, and regular links from Volokh, SCOTUSBlog, How Appealing and others.  As part of my blogging duties, I have become the de facto live bloggers for most legal events. I live blogged the Federalist Society National Lawyers Convention, the ACS Constitution in 2020 Conference. I will be liveblogging the Federalist Society Student Symposium in Philadelphia. I will also be live-streaming video from outside the Supreme Court on March 2 before, and after oral arguments in McDonald v. Chicago. And if the ACS lets me in, I’ll liveblog their national convention. I have also recorded a series of JoshCasts and JoshVlogs which are interviews with leading Judges, Professors, Authors, and other interesting people. Lots of fun.
6. Sixth, I am very closely involved with McDonald v. Chicago, the upcoming Second Amendment incorporation case. I co-authored Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States with Ilya Shapiro from the Cato Institute. This article was published this month in the Georgetown Journal of Law & Public Policy. Pandora has already been cited in several briefs to SCOTUS, including Gura’s reply brief. I’m feeling stoked about a citation by Thomas, J. Ilya and I have an Op-Ed in the Washington Times on Pandora coming out next week. Also, I’ve taken this show on the road, and presented Pandora to the NRA’s Scholar’s Conference in New Orleans. I will be speaking to the George Mason Federalist Society on March 1, the Georgetown Federalist Society on March 2, and the Penn State Law Second Amendment Club on March 26. I have been selected to co-author an article about the McDonald decision, whatever it may be, in a journal. Details TBD.
7. In addition to Pandora, I have 4 other published (or in the process of being published law review articles). Omniviellance, published in the Santa Clara Law Review while I was a 3L, was my first piece. I wrote about the privacy implications of Google Street View.  I have an article about eminent domain and Village of Willowbrook v. Olech coming out in the Loyola Law Review. I have another article on the Lemon test coming out shortly in the George Mason Civil Rights Law Journal. I have another article about Youngstown’s Fourth Tier in the Memphis Law Review, which I co-authored with Elizabeth Bahr. And I have a bunch of articles in various stages, of development and will likely be published in the next year or so. Check out all my publications here.
8. Despite being an ardent defender of capitalism, I still derive utility from philanthropy. And especially good causes that promote liberty. To that end, Yaakov Roth and I co-founded the Harlan Institute. The Institute aims to harness the power of Web 2.0 to teach constitutional law. We will fuse cutting-edge technological initiatives with engaging educational programs designed by leading constitutional law scholars, historians, and Judges to show teachers and students the “greatness of this instrument.” I am actively expanding the Institute, seeking support, and looking to bring on several Interns this summer. If you are interested in learning more, please contact me. As always, donations are welcome.
9. As one of the first projects of the Harlan Institute, Yaakov and I are writing a book, called Constitutional Places, Constitutional Faces (see posts here). We are acquiring photographs of the people and places behind famous Supreme Court opinions. We have already found an agent, and are going to market the dickens out of this book. Stay tuned. This is going to be on the Wish List for every law student.
10. Under the auspices of the Institute, we are also developing a Wiki with photographs and other media dealing with some of the most famous SCOTUS cases. One of the features I am most proud of is Constitutional Voices. I have obtained the contact information for a number of people involved in SCOTUS cases, and I have interviewed them. I am creating a living history of our Constitution. I am super excited about this site.
11. In addition to the book, the Institute is working on developing a version of FantasySCOTUS geared towards high school students. The site will allow classes to decide real cases pending in front of the Court in real time! They will learn about the law, understand precedents, and write and blog about the Supreme Court. Details TBD. Any teachers interested? Drop me a line.

Phew. I think that’s it.

After months of eager anticipation, SCOTUS finally got their act together, and handed down Citizens United v. FEC. Thanks to SCOTUSBlog for their awesome liveblogging.

Justice Kennedy’s majority opinion if 57 pages. Justice Stevens’s dissent is 90 page  (maybe to match his age?) Justice Thomas also concurred in part, dissented in part.

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Today, SCOTUS heard arguments in Briscoe v. Virginia. Transcript available here.

This case may potentially reverse Melendez-Diaz. Everyone is focused on the vote of Justice Sotomayor, as Justice Souter cast the 5th vote to join Justice Scalia’s Motley Crew supporting his vision of the confrontation clause (Scalia, Thomas, Stevens, Souter, and Ginsburg) while Kennedy, joined by Roberts, Alito, and Breyer, dissented.

Anyway, of note, is that right out of the box, Justice Sotomayor asked the first several questions, specifically testing the outer-bounds of Melendez-Diaz.

Mr. Friedman:  If the Court were to reverse Melendez-Diaz and hold that a State may impose on the defendant the burden of calling a prosecution witness to the stand, it would severely impair the confrontation right and threaten a fundamental transformation in the way Anglo-American trials have been conducted for hundreds of years.

JUSTICE SOTOMAYOR: The State court has interpreted their provision to give the defendant the choice of subpoenaing the witness or asking the State to bring in the witness. Why is that overruling Melendez-Diaz?

MR. FRIEDMAN: Your Honor, the — the State courts, since the time of this case, since the time that these cases were tried, raised the possibility of asking the — that the defendant could ask the witness to bring — that the defendant could ask the prosecution to bring in the witness. It doesn’t really change anything from a straight subpoena statute in any — in either event.

Sotomayor continued grilling Friedman until Justice Scalia, the author of Melendez-Diaz,  jumped in on page 7 of the transcript. As well, she hit the Respondent with the first several questions.

Sotomayor seemed most interested in the Constitutional implications of Melendez-Diaz, rather than the policy arguments, Kennedy focused on in his dissent in Melendez. Tough call which way this will turn out. It is possible she is questioning the validity of extending Scalia’s majority. It is also possible she doubts Scalia’s view, and is trying to poke holes. We shall see.

Welcome to the fifth installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 3,200 members, who have made predictions on all cases currently pending before the Supreme Court.

One of the most anticipated cases before the Supreme Court this term is McDonald v. Chicago. McDonald considers whether Chicago’s handgun ban violates the Second Amendment. While District of Columbia v. Heller found that the Second Amendment protects the right to keep and bear arms from infringement by the federal government, McDonald will determine if the Second Amendment is incorporated to the states.

Out of 78 predictions, 38% (30) predict that the Supreme Court will affirm the 7th Circuit decision, and uphold Chicago’s handgun ban, while 62% (48) predict that the Court will reverse the decision, and strike down the ban.

Of the 48 members who predicted a reversal, 35 predicted a 5-4 split (73%). Of the 35 members who predicted an affirmance of the lower court, 20 predicted a 5-4 split (58%). Thus, the case is almost likely to be split along 5-4 lines. But, how will Justice Kennedy vote? The results after the jump.

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Welcome to the fourth installment of Predictions of the 10th Justice, brought to you by FantasySCOTUS.net. The league has over 2,600 members, who have made predictions on all cases currently pending before the Supreme Court. Check out a recent CNN.com feature on FantasySCOTUS.net. Also note that our site was placed above stories about Justice Sotomayor and Chief Justice Rehnquist.

Tony Mauro at the Blog of Legal Times wrote an article about the Supreme Court’s delay in releasing an opinion in Citizens United v. Federal Election Commission, commonly known as the Hillary Movie case. To help predict the case, Tony relied on several SCOTUS experts, and also asked our opinion. Interestingly, our data match the predictions of his SCOTUS experts.

Since our original predictions, our league has doubled in size and now has over 550 predictions for Citizens United. The Hillary Movie case is a showdown between free speech and campaign finance laws. In 2008, the D.C. Circuit ruled in favor of the FEC that Hillary: The Movie could not be shown on television right before the 2008 Democratic primaries under the McCain-Feingold Act.

Out of 556 predictions, 67% predicted that the Supreme Court will likely reverse the lower Court, while 33% predicted that the Supreme Court will affirm the lower court’s decisions.

The vast majority of members predict that the case will be a close 5-4 split. Two hundred and sixty-three  members voted for a 5-4 reversal, while 121 members voted for a 5-4 affirmance. This prediction of the league mirrors the predictions of close Court watchers. Very few predict that the case will be unanimous in either direction.

But what about the Supreme Court’s long delay in issuing the opinion? Our predictions, after the jump.

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