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I am moving today from Johnstown to Louisville, and have not had nearly enough time to read the entire opinion. Really, I skimmed the first half or so. A few observations.

First, this entire opinion is screaming to Justice Kennedy. The number of citations to AMK’s opinion in Lopez–something Orin Kerr was very proud of citing–make this Tony’s game.

Second, the entire section on federalism and US v. Bond fit nicely in with my analysis of Federalism 2.0. Using federalism to protect individual liberty is the way going forward. No surprise, but Bond was a Kennedy opinion.

Third, and this is perhaps the most strategic, what happens next? The United States will almost certainly want to go en banc. Can NFIB and the states petition for cert before the en banc petition? Would a petition for en banc review stay the petition for Cert. Does the Supreme Court really give a damn what pesky Circuit Judges are talking about? I think since the answer to the last question is no, the answer to the first two questions really don’t matter.

I would go for a prompt cert petition, get this to the Court for the October 2011 Term, and, well, let the games begin.

Update: Another observation. It is amazing how both sides can cite Justice Kennedy’s concurring opinion in Lopez to support their position. That tells me that Justice Kennedy really does swing both ways in his own opinions.

8/11/2011

To my readers:

In late August of 2009, I moved to Johnstown, Pennsylvania to begin a clerkship with Judge Kim Gibson on the United States District Court for the Western District of Pennsylvania. I had no idea what I was getting myself into. Frankly, when I received the call for an interview, I didn’t even know where Johnstown was. I had never even heard of the Johnstown Flood (fortunately, I noticed a sign about a Flood Memorial on the drive, because Judge Gibson asked me some question about it, so I was able to act somewhat informed).

In the fall of 2009 four big things happened, in somewhat rapid succession, that set the foundation for where I am today, and where I am going.

First, in early September after starting my clerkship, I told Judge that I was interested in becoming a law professor. Judge mentioned that he would be teaching a class at the Penn State Law School, and asked if I was interested in helping. I almost fell off my chair. I was pretty sure that when I arrived in Johnstown, there would be few, if any experiences to bolster my professional career beyond my work at the court. Such an amazing opportunity seemed like a blessing at the time. Judge and I taught together for 3 semesters, and that was one of the greatest professional experiences of my career.

Second, on September 27, 2009, I launched JoshBlogs, the WordPress progenitor to JoshBlackman.com. A few weeks prior, a really good friend who was a successful blogger and syndicated columnist told me that I had a lot of good ideas, and I should put them down on the web. In light of my isolation in Johnstown, I figured it would be a good way to keep in touch with the legal community, and maybe make a name for myself. My first post, on September 27, prior to the cert grant in McDonald v. Chicago, introduced the concept of Pandora’s Box. A post I wrote on September 30, 2009, following the Court’s  cert grant in McDonald, which included a question presented about the Privileges or Immunities Clause, was linked by Glenn Reynolds. Installanche! 2,000 hits in the first day. I was floored, and I immediately realized the power, and potential of putting my ideas on the webs. Almost 2,500 posts and 360,000 hits later, I am still amazed that people want to hear what I have to think.

Third, On October 6, 2009, I had the following gchat with a friend about predicting cases pending before the Supreme Court. This innocuous discussion was the birth of FantasySCOTUS.

Josh: Wait does Vegas take odds on scotus?

Friend: probably

Josh: Oh. That will be a blog feature. Placing fake virtual bets on outcome of cases. Like fantasy football!!

Friend:  i think pools as to how cases will come out would be fun

Josh: No I’m doing that. And law profs can offer their predictions. Special benefits if u guess who writes opinions, how close the vote is. Who dissents. Fun fun fun!

 Friend: heh

The next day I registered FantasySCOTUS.net and started planning the design. I commented to another friend on October 7, “this will be the new social networking revolution for law nerds.” In a very short time, I was able to put together the web site. I launched FantasySCOTUS.net on Thursday, November 12, 2009. At first, I thought this was just a joke, and something fun for lawyers and law students to play. I think I initially told some friends, and a few bloggers about it. As the day progressed, traffic started to pick up. By lunch time, the site was getting inundated with hits. By mid-afternoon, it was featured on just about every legal blog on the web. By 5:00 p.m. I had over 1,000 people signed–and it kept rising. I was simply shocked. I did interviews with WSJ, CNN, and ABC, and more. Today, there are over 10,000 members playing, and we created a prediction market to accurately forecast how the Supreme Court will decide a case. Before October 6, 2009, I never even imagined any of this was possible.

Fourth, in late November and early December, as FantasySCOTUS continued to grow, I received a number of emails from high school teachers around the country. They told me they were using FantasySCOTUS as an educational tool to motivate their students to learn about the Supreme Court. The teachers asked me to create an educational version for high school students that was easier to play. What did I know about teaching high school students? I had no clue. But, my passion for teaching about the law did not end with law students; high school students are the key. So, after a conversation with my Dad, I decided to build an educational version of FantasySCOTUS, and create a non-Profit.

But what to call it? With this conversation on December 15, 2009 with a friend, right before I did an interview with CNN, the Harlan Institute–or as it was originally known, The Harlan Institute for Constitutional Studies–was born:

Friend: the name is important
Josh: i agree.
Friend: i think it should have Law in it maybe
Josh: it should have law, constitution, some sort of education-y sounding word
Friend: yah
Josh: lets think of something now. ill mention it in my cnn interview
Friend: how about the Hamilton Institute
Josh: but i i dont like hamilton
Friend: why not
he was awesome
Josh: but I like Institute
Friend: i like harlan institute
Josh: i do like john marshall harlan
Josh: what about something with scholars?
The Harlan Institute for Constitutional Studies
Friend: i quite like that
Josh: harlaninstitute.org is available ok im going to buy it.  i love it

Since that point, the Harlan Institute has flourished. We are about to launch the second season of FantasySCOTUS.org, and hope to increase from the 250 classes that played last year to 1,000 classes. We collaborated with Justice O’Connor’s iCivics, and have been featured in CNN, the New York Times, the Washington Post, and more. The joy I receive from seeing high school students get excited, and engaged with constitutional law is incalculable. It makes me really, really happy.

By January of 2010, after these four important milestones, my path was more-or-less set. I began teaching with Judge Gibson, and absolutely loved it. We completed 3 semesters together, and it was an unreal experience. My blog continued to grow and make waves in the field. It’s pretty cool when I apply for a law professor position on the AALS and a hiring chair says, hey, I read your blog! FantasySCOTUS continues to expand, and yield ever-more-accurate predictions about the Supreme Court. The Harlan Institute is an efficient and effective non-profit that is doing amazing work to teach students about our most fundamental laws. I could not be more proud of these experiences, and am so grateful to the many people around me who helped me to get where I am today.

It is with that joy, that I must turn to sorrow.

Starting on Monday, August 15, 2011, for the next year or so, my blog will be on hiatus. When I resurface at some point in August of 2012, I guarantee that I will have a lot of things to say and talk about. For now, though, you will be forced to suffer through my absence. Though I assure you, I will suffer more from the deafening silence.

Thank you for your loyal readership, your insightful comments, and your attention to my ideas–this is recognition that what I have to say matters, and interests others. That, is the greatest debt I owe to the blogosphere, and I will be forever grateful.

Till then.

Josh

For some time, I have blogged about our evolving smartphone culture, and how the use of iPhones and Androids in public, even when in the company of others will become more socially acceptable as time goes by. Today there was a piece in the Times that essential echoed what I have been saying for some time. Smart phones have made it “fashionable to be rude.”

YOU are at a party and the person in front of you is not really listening to you. Yes, she is murmuring occasional assent to your remarks, or nodding at appropriate junctures, but for the most part she is looking beyond you, scanning in search of something or someone more compelling.

Here’s the funny part: If she is looking over your shoulder at a room full of potentially more interesting people, she is ill-mannered. If, however, she is not looking over your shoulder, but into a smartphone in her hand, she is not only well within modern social norms, but is also a wired, well-put-together person.

Add one more achievement to the digital revolution: It has made it fashionable to be rude.

My take, circa October 2009:

To those outside the urban jungle, this may seem like absolutely bizarre behavior. The first time I told people in Johnstown, PA about this behavior, they were stunned when I described these social norms. (Of course, I leave my blackberry in my pocket while eating with my Judge.)

But, I argue that the culture is changing.

As more and more people engage in this compulsive crackberry checking, norms change. It becomes less grotesque, and more socially acceptable.

I’m sure at some point it was uncouth to answer a cellular phone at dinner. Now, it is only marginally improper. I think blackberrying should be more proper, mainly because it creates no distracting noise (other than the clicking of the keys), and is usually finished much quicker than placing a phone call (i can read and reply to a message in a few seconds).

For the present, I am still a social anomaly. But I am confident that over the years, my behavior will become more acceptable.

Pioneers always take the arrows

A social anomaly no longer. Yes, my anomalous behavior, in part, in the aggregate has helped to make this culture more socially acceptable (in Wickard v. Filburn logic). As the Times said, it is fashionable to be rude.

The Times’ description of a new age gathering is quite similar to mine.

Compare:

“Instead of continuing with the conversation, we all take out our phones and check them in earnest,” he said. “For a few minutes everybody is typing away. A silence falls over the group and we all engage in a mass thumb-wrestling competition between man and little machine. Then the moment passes, the BlackBerrys and iPhones are reholstered, and we return to being humans again after a brief trance.”

with

If you have ever had dinner with D.C. Lawyers, you will no doubt be familiar with the following site: Everyone at the table has their blackberry on the table. At any given time, one or more attendee will be pecking away an e-mail, sending a BBM, updating their twitter with a funny joke they just heard at the table, or researching the answer to a trivia question someone asked.

One passage stuck out, in particular:

In a phone conversation a few weeks afterward, Mr. Powers said that he is far from being a Luddite, but that he doesn’t “buy into the idea that digital natives can do both screen and eye contact.”

“They are not fully present because we are not built that way,” he said.

We are not “built” that way? Is he referring to the way our brains are structured. As I have blogged before, the brains of millennials are wired differently, through building certain types of synapses, to enable us to receive this inundation of information, and multitask like a pro. If anything, we are changing. As I previously noted, my ability to multitask and follow several conversations is pretty decent.

Some people are repulsed when I have a conversation with them, while typing on my blackberry, assuming I am not paying attention. I apologize for any offense I may cause, but years of blackberrying have trained me to multitask like a pro. I’ve tested this with my co-clerk, and I can usually follow 80% of a conversation while I’m typing on my blackberry. I submit that this is not much lower than what I would normally follow if I gave someone my undivided attention. From a utility perspective, I would rather be able to have 2 conversations at 80%, than one conversation at 90 or 95%.

I don’t like to brag too much, but readers of this blog will see stuff on these pages way ahead of the curve. I’m on it.

I go to the Post Office as rarely as possible. Today, I needed a bunch of stamps to send out some Harlan mailings, so I ventured to the main Post Office in Johnstown. I intended to avail myself of the quick and efficient stamp vending machine. This machine allows me to purchase stamps without waiting on a lengthy line.

I walk in, and the alcove that house the vending machine was now an empty corner. Surprised, the machine was gone. I asked a Postal Worker where it went, and he said “It wasn’t meeting its quota.” Surprised, I said “I didn’t realize machines had quotas.” He replied, “When you install an expensive piece of technology that requires maintenance costs, it has to meet a certain quota.”

I wonder if the same logic applies to human postal workers. They are certainly expensive to employ, and I’m fairly sure that their benefits (pension, health insurance, etc.) far exceed the costs of maintaining a vending machine. Do postal workers have a similar quota? What is it? How could it even be measured? Is there a comparison between the machine’s efficiency and the efficiency of a employee? Who can sell more stamps per hour?

What is the process to terminate a postal employee whose costs exceeds his or her productivity?

Regardless, I had to wait a lengthy period to buy some stupid stamps, when a machine could have handled the transaction in a manner of seconds.

I don’t know how much gas costs where I live. I fill up usually once a week with regular, but I don’t even bother checking the price per gallon,or the total amount. I just blindly swipe my credit card, pump, and go on my way. People think this is absurd. I regularly ignore rants about the rising price of gas ($4! $5!). How am I so content? Informed rational ignorance.

I discovered long ago that all the prices of gas in Johnstown (and really Western, PA) are the same, or perhaps within a 5 or 10 cent range. All gas is more-or-less the same. I need to drive a certain number of miles per week for business and pleasure. That requires a certain number of gallons of gas. Therefore, no matter where I go, I am paying the same amount for the same gas. It makes no sense to worry over every increase in the price of gas because I will not modify my needs. So really, it doesn’t make a difference to me.

But why is the price of gas always such a popular topic? Some Bastiat may be helpful–remember what is seen,and what is unseen. The price of gas is seen in a very visible way. At every street corner gas stations prominently display the price of gas in huge numbers. It is very easy to compare the price of gas between gas stations (Sunoco costs more than Exxon!), and from day to day (Gas cost $3.45 yesterday and today it is $3.50!). It always amazed me that people who have absolutely no control over their finances, and spend indiscriminately still carp about the price of gas.

Certainly fluxes in the price of gas are seen. But what about the costs in your life that are (relatively) unseen? What if you received an e-mail or text message from the state every day indicating how much of your income that day went towards paying taxes? Considering uncertainty over the future of tax rates, this number will certainly be in flux. What if every product you purchased that is subject to some tariff or anti-competitive trade policy, listed the increase in price due to that policy? What if every meal you purchase included a note of how many tax dollars of farm subsidies contributed to this meal? Or, what if the price of gas included a breakdown of how much of that price included local, state, and federal taxes (a huge chunk)? All of these costs, which impact how much we spend on more than one commodity, are largely unseen.

I am much more cognizant of these costs, as they impact a larger chunk of my wallet than gas. Say I purchase 25 gallons of gasoline a week (much more than I would ever buy). At $3 a gallon that is $75. At $4 a gallon that is $100. At $5 a gallon that is $125. I’d wager that this $50 increase, which people are quite aware of, pales in comparison with some of the other unseen costs I mentioned above. People are cognizant of what is seen, but ignore what is unseen.

Oh, and I just googled it. Today the price of gas in Johnstown is between $3.55 and $3.59.