Publications

Josh has published 82 law review articles in 54 journals.

2025
- Reviewing The Three Trump Appointees: Ex Ante and Ex Post
  
  Texas A&M Journal of Law & Civil Governance (2025)
- The Section 3 Litigation
  
  Mississippi Law Journal (2025)
- Offices and Officers of the Constitution Part VI: The Ineligibility Clause
  
  South Texas Law Review (2025)
- Obergefell in Alabama
  
  Faulkner Law Review (2025)
2024
- Sweeping and Forcing the President into Section 3
  
  Texas Review of Law & Politics (2024)
- Students for Fair Admissions v. Universities for Division, Exclusion, and Inequity: The Petitions, The Arguments, and the Decision
  
  SMU Law Review (2024)
- Bilateral Judicial Reform
  
  Texas A&M Journal of Law & Civil Governance (2024)
- Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Foreign Emoluments, and Incompatibility Clauses
  
  South Texas Law Review (2024)
- What We Did and Did Not Argue in United States v. Trump – Seth Barrett Tillman & Josh Blackman
  
  Harvard Journal of Law and Public Policy (2024)
2023
- Offices and Officers of the Constitution: Part III, The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses
  
  South Texas Law Review (2023)
- Offices and Officers of the Constitution, Part IV: The 'Office . . . under the United States' Drafting Convention
  
  South Texas Law Review (2023)
- Abortion and Religious Liberty
  
  Texas Review of Law & Politics (2023)
2022
- The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct
  
  Georgetown Journal of Law & Public Policy (2022)
- The “Essential” Second Amendment
  
  Texas Review of Law & Politics (2022)
- California v. Texas on the Final Installment of the Obamacare Trilogy
  
  Palgrave Macmillan (2022)
- The Irrepressible Myth of Jacobson v. Massachusetts
  
  Buffalo Law Review (2022)
- Judicial Courage
  
  Texas Review of Law & Politics (2022)
2021
- The “Essential” Free Exercise Clause
  
  Harvard Journal of Law and Public Policy (2021)
- Is the President an 'officer of the United States' for Purposes of Section 3 of the Fourteenth Amendment
  
  NYU Journal of Law & Liberty (2021)
- What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?
  
  Illinois Law Review Online (2021)
- Unreviewable: The Final Installment of the “Epic” Obamacare Trilogy
  
  Cato Supreme Court Review (2021)
- Corpus Linguistics and Heller
  
  Wake Forest Law Review (2021)
- Offices and Officers of the Constitution, Part I: An Introduction
  
  South Texas Law Review (2021)
- Offices and Officers of the Constitution, Part II: The Four Approaches
  
  South Texas Law Review (2021)
2020
- ABA Model Rule 8.4(g) in the States
  
  Catholic University Law Review (2020)
- The Once and Future Privileges or Immunities Clause
  
  George Mason Law Review (2020)
- Originalism and Stare Decisis in the Lower Courts
  
  NYU Journal of Law & Liberty (2020)
- Technology, Social Media, and Professional Ethics
  
  University of Dayton Law Review (2020)
- #Heckled
  
  First Amendment Law Review (2020)
- The Right to Code and Share Arms
  
  Law and Contemporary Problems (2020)
- October Term 2019 in Review: Blue June
  
  University of Chicago Law Review Online (2020)
2019
- Five Unanswered Questions from Trump v. Hawaii
  
  Case Western Reserve Journal of International Law (2019)
- Remembering Professor Ronald Rotunda
  
  Chapman Law Review (2019)
- Improper Commandeering
  
  University of Pennsylvania Journal of Constitutional Law (2019)
- Undone: The New Constitutional Challenge to Obamacare
  
  Texas Review of Law & Politics (2019)
- From Being One L to Teaching One L
  
  Carolina Academic Press (2019)
- The Irrepressible Myth of Cooper v. Aaron
  
  Georgetown Law Journal (2019)
2018
- Presidential Maladministration
  
  Illinois Law Review (2018)
- Defiance and Surrender
  
  South Texas Law Review (2018)
- The Domestic Establishment Clause
  
  Roger Williams Law Review (2018)
- Self-Plagiarism
  
  Florida State Law Review (2018)
- The Travel Bans
  
  Cato Supreme Court Review (2018)
2017
- The 9th Circuit’s Contrived Comedy of Errors in Washington v. Trump
  
  Texas Law Review See Also (2017)
- Foreword: SCOTUS After Scalia
  
  NYU Journal of Law & Liberty (2017)
- Reply: A Pause for State Courts Considering Model Rule 8.4(G) The First Amendment and “Conduct Related to the Practice of Law”
  
  Georgetown Journal of Legal Ethics (2017)
- Predicting the Behavior of the Supreme Court of the United States: A General Approach
  
  PLOS ONE (2017)
- The Legal Resistance
  
  Faulkner Law Review (2017)
- The Saving Construction at Five Years
  
  St. Thomas Journal of Law and Public Policy (2017)
2016
- U.S. v. Texas (Scalia, J., concurring)
  
  Cato Supreme Court Review (2016)
- Government by Blog Post
  
  FIU Law Review (2016)
- Immigration Inside The Law
  
  Washburn Law Journal (2016)
- Popular Constitutionalism After Kelo
  
  George Mason Law Review (2016)
- Collective Liberty
  
  Hastings Law Journal (2016)
- Restoring the Lost Confirmation
  
  University of Chicago Law Review Online (2016)
- State Judicial Sovereignty
  
  Illinois Law Review (2016)
- Gridlock
  
  Harvard Law Review (2016)
2015
- The Path of Big Data and the Law
  
  West Academic Publishing (2015)
- The Constitutionality of DAPA Part II: Faithfully Executing The Law
  
  Texas Review of Law & Politics (2015)
- The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action
  
  Georgetown Law Journal Online (2015)
- The Process of Marriage Equality
  
  Hastings Constitutional Law Quarterly (2015)
2014
- Popular Constitutionalism and the Affordable Care Act
  
  Routledge Mental Health (2014)
- The Burden of Judging
  
  NYU Journal of Law & Liberty (2014)
- The Shooting Cycle
  
  Connecticut Law Review (2014)
- The 1st Amendment, 2nd Amendment, and 3D Printed Guns
  
  Tennessee Law Review (2014)
- What Happens if Data is Speech?
  
  University of Pennsylvania Journal of Constitutional Law Heightened Scrutiny (2014)
- Obamacare & Man at Yale
  
  Illinois Law Review (2014)
2013
- Back to the Future of Originalism
  
  Chapman Law Review (2013)
- Popular Constitutionalism and the Affordable Care Act
  
  Public Affairs Quarterly (2013)
- Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98
  
  George Washington Law Review Arguendo (2013)
- John Marshall Harlan: Professor of Law
  
  George Washington Law Review (2013)
2012
- Crowdsourcing A Prediction Market for the Supreme Court
  
  Northwestern Journal of Technology & Intellectual Property (2012)
- Originalism at the Right Time?
  
  Texas Law Review See Also (2012)
- The Supreme Court’s New Battlefield
  
  Texas Law Review (2012)
2011
- Pierson v. Post and The Natural Law
  
  American Journal of Legal History (2011)
- The Constitutionality of Social Cost
  
  Harvard Journal of Law and Public Policy (2011)
2010
- This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose
  
  George Mason University Civil Rights Law Review (2010)
- The Tell-Tale Privileges or Immunities Clause
  
  Cato Supreme Court Review (2010)
- Youngstown’s Fourth Tier. Is There A Zone of Insight Beyond the Zone of Twilight?
  
  Memphis Law Review (2010)
- Equal Protection from Eminent Domain
  
  Loyola Law Review (2010)
- Keeping Pandora’s Box Sealed
  
  Georgetown Journal of Law & Public Policy (2010)
- Original Citizenship
  
  University of Pennsylvania Law Review PENNUMBRA (2010)
2009
- 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
  
  Santa Clara Law Review (2009)