Tag Archives: Josh Blackman

Cross: Josh Blackman, A Fearless Constitutional Contrarian

January 18, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross prolific blogger and South Texas College of Law associate professor Joshua M. Blackman.

Q. You went to college at Penn State, where you studied information sciences and technology, not exactly the routine precursor to a career in the law. What were you into then? Was the plan to be on the cutting edge of tech, or something less remunerative? You were apparently pretty good at it, graduating magna cum laude in December, 2005, and yet you chose to go to George Mason Law. What went wrong? Was there something that pushed you away from a lucrative career? Was law always in the plan? Did you get in trouble and get punished by being forced to attend law school?

A. For as long as I can remember, I was surrounded by computers. Both my parents were in the business, and I was always exposed to technology. During my sophomore year in high school (1999), I took notes on my Palm Pilot IIIe. By my junior year, I brought a HP Jornada 820 laptop to class. Penn State’s then-new major of Information, Sciences, and Technology seemed like a good fit for my interests and skillset. In hindsight, I am very grateful for the education I received.

In recognition of my work on network security, the Department of Defense awarded me a two-year full scholarship-for-service: they would pay my tuition for two years, and in exchange I promised to work for the DOD after I graduated for two years. It was a sweet deal. Following my junior year, I interned at the Defense Information Systems Agency in Arlington, Virginia, and was assigned there permanently once I graduated.

For reasons I still don’t completely understand, I decided to take the LSAT during my final semester at Penn State. I had only taken one law-related class, which focused on cyberlaw, and knew next to nothing about what law school entailed. My preparation was minimal—I took a few sample tests over the course of a few weeks. I frankly wasn’t too concerned with my score because my plan was to apply early decision to George Mason as an evening student, and nowhere else. By that point, I would have established in-state residency, so my tuition would be a fraction of the cost of other D.C. schools. Also, my office was a 10-minute drive to Arlington’s campus.

I had some vague notion that my technical background would prepare me for a career in intellectual property, but didn’t know much more than that. I distinctly remember GMU’s brochures which basically promised me a starting salary of $160,000 a year, so it seemed lucrative enough. (Those were the heady days, huh?) I had no idea what I was getting myself into—I didn’t even know what 1L meant.

Q. After graduating Penn State, you went to work at the Department of Defense doing computer stuff while attending law school. Was there some connection between your working for the government and your views toward law? Did this shape your perspective? What about your analytical background in computers? Did that relate to your view of law? You continued to work for DoD throughout law school, moving from computers to the general counsel’s office. Did you want to work as a government lawyer? Where there other areas of law that interested you? Was your work with the DoD a matter of paying for law school or did that reflect your area of legal interest? How did you find the time to be articles editor on law review with all that going on?

A. During my first year of law school, I continued to work 40 hours a week as a computer scientist with the DOD, focusing on network security. My initial goal was to rush through law school as an evening student in 3.5 years. However, after a few weeks, I realized I absolutely loved law school! My passion was no longer for coding. After my first year, I switched to the full-time program.

To my good fortune, my supervisor at work recognized my shifting interests, and allowed me to transfer to the agency’s general counsel office, where I focused mostly on labor issues. We were able to work out a deal where I would work 25 to 30 hours per week, but with staggered shifts, that would allow me to go to class during the day. During the week, I would go to work in the morning for a few hours, go to a class, go back to work, then back to class for evening sessions. (By the way, this is where my custom of always wearing a suit to class began—I literally had to because I was schlepping back and forth to work).

As your readers may know, the ABA has a paternalistic rule that limits students to 20 hours of work during the week. It is utterly insane for the accreditors to tell students how much they can work to support themselves, without any reference to an individual student’s aptitude. I violated the rule, and am damn proud of it.

This schedule, combined with law review duties was brutal, but I loved it. Also, as a glutton for punishment, I took 18 credits every semester, including every constitutional law class GMU had to offer. Even though I started off as an evening student, with a credit deficit, I still graduated magna cum laude with 6 or 7 credits more than I needed to graduate. All the while, I continued working at the DOD until August 2009, when I began my clerkship for Judge Gibson in the Western District of Pennsylvania.

Q.  Following law school, which you graduated in 2009, again magna cum laude, you clerked for two judges, first Judge Kim R. Gibson in the Western District of Pennsylvania, and then Judge Danny Boggs at the Sixth Circuit. Judge Boggs is famous for giving his clerkship applicants an arcane general knowledge quiz. You apparently passed, but neglected to go on TV’s “Who Wants To Be A Millionaire?” What was it like clerking? Was there a reason why you sought to clerk with Judges Gibson and Boggs? How did that experience shape your view of the law? Did you share their philosophy toward law? Politics? Did the experience make you want to try your hand in the well or at the lectern?

A. By the summer before my third year in law school, I became obsessed with the idea of clerking. I am not exactly sure why I wanted to do it (a close friend did it and seemed to enjoy it) but my burgeoning interest in the federal judiciary had taken a hold of me. To accomplish this goal, I did something absolutely insane: I applied to every single district and circuit judge in the country. (I discuss the details in this essay I wrote shortly before I started teaching).

That year, I received a single circuit court interview (he happens to be on Mr. Trump’s short list), but did not get the position. I also received several district court interviews, but none felt as good of a fit as Judge Kim R. Gibson. Judge Gibson was a West Point graduate, and a former state-court judge from Somerset, PA. He made his name by handling the legal aftermath of Flight 93, which crashed in his jurisdiction. We had such a good rapport during the interview, I knew I would be at home. Above all, he was always kind to me, and supported my insane endeavors with a smile. Most importantly, the clerkship allowed me to sit in court nearly every day of the week.

Though my practice experience is nil (Scott will never let me forget this), in my two years clerking, I received a crash course in all manner of civil and criminal litigation. We had a higher-than-average number of trials (several diversity jurisdiction tractor trailer accidents on the Pennsylvania turnpike) as well as some bizarre criminal cases involving Pennsylvania “militia men” (all acquitted!).

As a geographic matter, however, the clerkship was not so great. Johnstown, Pennsylvania is remote—about 2 hours from Pittsburgh and 4 hours from Washington, D.C. In hindsight, the isolation was a blessing, as it gave me so much time to write. During my two years in Johnstown, I published nearly ten law review articles, started my blog, launched FantasySCOTUS, and began building my platform. I don’t know if I could have done all of that had I lived in a more interesting place.

As for Judge Boggs, I actually applied to him three times. First, as a 3L, I applied and received the quiz, but did not make the cut. I applied again during my first year with Judge Gibson. Much to my disappointment, I was his fourth choice, and there were only three slots available. He had recently concluded his Chief Judge service (a year early!), so he had one fewer space. After candidate #3 accepted, Judge Boggs told me to apply, yet again, the following term.

During my second year clerking with Judge Gibson, I applied, and probably out of pity, I got the coveted Sixth Circuit clerkship. Judge Boggs is a polymath and a renaissance man. I don’t say that lightly. He knows everything about everything. It is humbling to work for him, and I learned so much about the law, as well as countless other topics that he would muse about. We still keep in close contact. I am beyond grateful that my first two employers after law school were such remarkable jurists.

Q. While you clerked for Judge Gibson, you taught a federal courts seminar at Penn State. Was that it? Were you hooked on academia? Following your time with Judge Boggs, you entered the AALS meat market for a tenure track position. Was there an attempt to go for a Supreme Court clerkship? How did that turn out? Did you consider practicing law instead of teaching? What if you hadn’t gotten a position, was there a plan B? Do you ever wonder, looking back now from the Ivory Tower, whether you chose the wrong path?

A. Shortly after the clerkship began, Judge Gibson mentioned that he was asked to teach a federal courts seminar at the Penn State law school (his alma mater). I had mentioned during my interview that I had an interest in teaching. He asked if I would help him teach the class with him. I was elated! Working closely together, we put together a syllabus, and (thankfully) about a dozen students decided to enroll in the new class. Over the course of the spring 2010 semester, every week Judge and I would drive to University Park (about 2 hours away), and teach a 2.5 hour class on all facets of litigating in federal courts.

The lectures were usually divided in half. I would discuss the theoretical aspects of the law, and go over the relevant cases. Then Judge Gibson would explain how it works “in practice.” To answer your questions, I was hooked. I couldn’t believe how much I enjoyed teaching. We taught the class again in the Spring of 2011. By that point, I decided that I wanted to apply to become a fulltime law professor.

I submitted my materials to the AALS “meat market” in the summer of 2011, shortly before I began my clerkship with Judge Boggs. To be frank, I didn’t have a Plan B. I had an offer waiting from the law firm I summered at, but I had no interest in going back. One experience crystalized that reaction—I wrote a memo for a partner on some government contract issue, and raised a due process issue. The partner criticized the memo, saying he didn’t care about the Constitution. Technically, the offer is still standing, but I suspect they forgot about me. I didn’t, and still haven’t, applied for a Supreme Court clerkship. It was academia or bust. In hindsight, I have no doubt I made the right decision.

Q. You ended up teaching in Houston at South Texas College of Law, first in Property Law and then shifting into Constitutional Law. How did an East Coast kid end up in the Republic of Texas? You had the misfortune of coming out of law school at a dark time for new lawyers, something that was also reflected in legal academia. Was there much opportunity for new lawprofs? What were the options available for teaching law? Not to be unkind, but South Texas isn’t Harvard. Is there any hope to climb up the food chain? What does a young lawprof do to establish his scholarly cred?

A. The “meat market” process at the AALS was brutal. At the time, I had a dozen publications, and several more in the works. To my surprise, I received about two-dozen interviews at the market, including several at Tier I schools. Though, for reasons I still don’t completely understand (you can speculate), I was only invited for “call back” interviews at two schools: Ave Maria and South Texas.

I had never been to Texas before the interview (other than a layover), but my visit was spectacular. The faculty and staff quickly made me feel at home, and offered me a place to develop as a scholar and teacher. Shortly after the interview, South Texas made me an offer, which I gladly accepted. Originally, I was hired to teach property only, but in my second year, a constitutional law professor took emeritus status. That opened up a spot for me. I am grateful to the administration for allowing me to slot into this coveted courseload.

I’ve now been teaching at South Texas for five years, and am really lucky for the focus the school places on teaching. For purposes of tenure, teaching is more important than scholarship. At most other schools, that presumption is reversed. Working with senior colleagues, I have tried to continuously improve my teaching. No matter how much I write, the biggest impact I’ll have is on the 150 students I teach every week. No one else has to read my work, but those students are required to sit and listen to me talk for two hours straight. This, and not in print, is where I will make my biggest mark as a scholar.

Q. You are, to say the least, a prolific writer, and have been since law school. At present, you have more than 10,000 blog posts, 34 law review articles and two books, Unprecedented: The Constitutional Challenge to Obamacare and Unraveled: Obamacare, Religious Liberty, and Executive Power. What drives you to write? One of the primary critiques of academics is that they may write scholarly articles, but no one reads them. Has that been your experience? Do you think your work has had an impact in the real world? Has it been worth it, or do you wonder if you murdered all those words for nothing? Which of your efforts has had the greatest impact, for you and for the law?

A. I love writing. I consider it a hobby. Whenever I have a free moment, my fingers are drawn to the keyboard, as I think about how to phrase my ideas in the most appealing manner. The process is truly iterative. My ideas often start as tweets, evolve into blog posts, and before I know it, I have enough content for a law review article. Indeed, my books are (in large part) collections of my prior writings. I hope to continue writing for as long as I can. I have more topics that I wish to write about than there are hours in the day.

This may surprise my readers, but I don’t write for them. Truly. I write for myself. Whether anyone reads my material is secondary to my personal intellectual pursuit of putting words to (digital) paper. Even though all of my writings are publicly available, and I encourage (urge) people to read my material, I write because it satisfies my own curiosity. Writing about something helps me think through issues.

My writings have impacted the real world. Federal judged have cited my scholarship in consequential opinions affecting constitutional law. I’ve written several amicus briefs—though not cited (yet), their ideas were adopted by majority opinions. Reporters have quoted me in media to explain complicated legal issues to millions of Americans. Beyond the law students in my classrooms, tens of thousands of law students around the world watch my lectures on YouTube. I can relate that Unprecedented sits on the bookshelves of several Supreme Court chambers, and one Justice discussed it during conference.

Q. Early on, you staked out a libertarian position on law and politics, and it’s been reflected in your writings and opinions. Where did this come from? Prawfs Ilya Somin and Randy Barnett, Volokh Conspirators both, were offered as your academic references. Did they influence you? Did you consider what impact your views would have in an extremely progressive academic climate? Did your views have any negative impact on you as an academic?

For a young law professor, you’ve never been shy about stating your views. More importantly, you’ve never been shy about having views that differ from the prevailing views amongst your fellow academics. You have not yet gotten tenure, though you were promoted from assistant to associate prof in 2015. Are you at all concerned that expressing more conservative or libertarian views would cause problems? Does it concern you that there are so many academics who have the protection of tenure who remain concerned about voicing views outside the progressive academic mainstream? To what do you attribute that?

A. As a law student, I am very grateful to have had the opportunity to take classes with so many prominent libertarian professors, including Ilya Somin, David Bernstein, and others on the GMU faculty. Additionally, I took full advantage of the D.C. scene, and became friends with Randy Barnett at Georgetown, Ilya Shapiro at Cato, the lawyers at the Institute for Justice, and many others. They were all instrumental in my intellectual development, and helped shape my views on the law and the Constitution. With their guidance, by the time I graduated, I had already authored seminar papers (which would become law review articles) on the Second Amendment, eminent domain, information privacy, the Establishment Clause, and national security.

This strong publication record, perversely, complicated my entry to the academic market. It singled me out as a constitutional law scholar—and even worse, a libertarian one! Virtually every single one of my mentors told me not to go onto the market as a libertarian constitutional law professor: without a Harvard or Yale JD, or a Supreme Court clerkship, as a Caucasian male, I had no chance. Randy Barnett urged me over dinner to consider becoming an IP scholar (in light of my technical background), as the private law field is less prone to ideological bias. Others suggested I should not write about anything controversial, and lay low until I got tenure—then I could come out of the intellectual closet to show everyone my true colors. And they all insisted that blogging was a bad idea, and I should not create a record of informal writings that could be used by opposing faculty to spike my candidacy.

Through a combination of arrogance and naiveté, I ignored all of their advice, and went on the market as a constitutional law professor. I could not hide from my already-public record at that point, nor would I want to be a scholar on topics that don’t interest me—I don’t think I’d be nearly as productive. Fortunately, I had written an article on Pierson v. Post, so I could credibly list property as an alternate class. That single paper helped get me the interview at South Texas, and the rest is history.

As for being outside of the mainstream, it really has never bothered me. Many professors—even with tenure—have a natural aversion to being criticized. Playing it safe means your work won’t be criticized. Thankfully, since I was young, peer pressure has never worked on me. As I noted above, I frankly don’t care what others think of me, or what I write. I do it for my own worth. If others find value in it, great! But that’s not why I do it. Even without tenure (which I will be eligible for in the Spring of 2018), I take seriously the importance of academic freedom, and put all of my efforts into critical thinking—regardless of how far out of the mainstream I am. Since I began teaching, I have been very fortunate to have the support of the Dean and the faculty in all of my endeavors, and never once felt like the content of my writings was held against me.

Q. While there has been no shortage of scholarly Blackman writings, your blog has also proven to be very influential, as well as informative. But unlike law reviews, it’s pretty readable for the practicing lawyer, and even the non-lawyer. Bryan Garner has waged war against lawyer-speak, which remains the mainstay of most academic writing, but you’ve been remarkably plain-spoken and comprehensible on the blog.

Where have you gone wrong? Do you take issue with dense and prolix writing? Are you deliberately trying to be clear where others are more circumspect? You wrote a particularly funny post about the meaning of the word “interesting” in academic jargon. Is this a message that you will say what you mean and not moderate your writing to the point of incomprehensibility? Does it make your head hurt when other academics refuse to say what they mean?

A. Like my decision to go on the hiring market as a libertarian constitutional law professor, my decision to start the blog in September 2009 was driven by a mix of arrogance and naiveté (sensing a pattern?). After I narrowly missed out on the clerkship with Judge Boggs, a close friend urged me to start a blog. He said it would give me an outlet to write and build a reputation while I was stuck in Johnstown. I do not recall ever asking for permission from Judge Gibson before I began—I think I told him after I launched it. I still can’t believe he let me blog—he never objected to any of my posts so long as I stayed away from politics and anything concerning the Western District of Pennsylvania. Although he did make me take down my video of “Hitler reacts to Citizens United. (He didn’t get the meme).

Launching that blog was one of the better decisions I’ve ever made. Thanks to several early links from the Volokh Conspiracy, Instapundit, Althouse, and a few others, many people began reading my blog, beyond those I could reach on my Facebook or my nascent Twitter account. JoshBlackman.com has allowed me to develop a special bond with more people than I’ll ever know. In a little more than eight years, I have published nearly 10,000 posts on more topics than I can even remember, and reached millions of readers around the globe. Remarkably, some of my original readers still follow the blog, and regularly email me about posts. Occasionally, when I meet people, they will say “I’ve been reading your blog since you were in Pennsylvania!” It’s surreal.

My writing style on the blog, and everywhere else, is geared towards a college educated person with an interest in the law. Occasionally, I’ll have a technical post, that gets into the weeds of legal doctrine, but for the most part my prose is designed for a broad audience. Writing in this fashion, so often, and so quickly, has helped me become an even better academic writer, as well as a brief writer. I continuously work on my prose, sometimes agonizing over an opening sentence for an hour (it is really the most important). I hope all of my colleagues take Bryan Garner’s advice to heart—we can reach so many more people if our material is understandable.

Q. An issue that we’ve talked about in the past, but has returned (did it ever go away?) with a vengeance is academics using their cachet as scholars to promote their political agendas without regard to any “search for the truth.” Indeed, it’s quite the opposite, that some are deliberately promoting false understanding of law to serve a goal for which a faithful representation of law presents a problem.

How big an issue is this in the academy? Do prawfs recognize it but not care? Is there any movement within law schools to call out those academics who abuse their credentials for their cause? Are there liberal prawfs who are disturbed by this happening? Are they willing to speak out, to admonish their colleagues not to take advantage of their scholarly credibility to achieve a political goal? If not, what’s become of intellectual honesty in academia?

A. Professors hold a very special place of trust with the public. When we write something, it has a different significance than when a non-professor writes the exact same thing. Unlike attorneys who represent clients (and thus have a vested interest), and even think-tankers (who are often nudged in a certain direction), professors are given academic freedom to pursue the truth wherever it goes. If we forsake that trust, our words become worthless.

I recently wrote critically of a letter signed by 1,400 law professors opposing the confirmation of Senator Jeff Sessions as Attorney General. As a threshold matter, the letter had no meaningful legal analysis—it recited hackneyed talking points, which were of contestable veracity. Further, of the 1,400 professors who signed it, maybe a couple were actually involved in writing it. Would any professor put their name on a law review article they did not write? More specifically, one of the claims in the letter referenced Senator Sessions’ record over the past three decades. Did any of them review his entire record over this period. Of course not! (I doubt any Senate staffers did either). How they could put their signature to this letter boggles my mind. I will use all of my efforts to explain to professors why putting their names on these letters, to which they did not contribute, exploits their credibility.

In any event, NBC News and the Washington Post wrote favorable stories about the letter. I wrote a letter to the editor of the Post (which was not published), questioning why this non-legal analysis was in the least newsworthy. (It wasn’t).  Ultimately, the letter served its purpose. Senator Feinstein of California, the ranking member of the judiciary committee, referenced the letter during her opening statement, as if it would give a single Senator a reason to oppose Sessions. (It didn’t).

Q. As a still-young professor, you’ve got a lot ahead of you, despite having published more than most by the time of retirement. Where do you go from here? Is the goal to end up with the New England elite? While you’ve done numerous amicus briefs, what about real litigation, whether in the trenches or on appeal? Or given that lawprofs have found their way to the Supreme Court (where your Fantasy SCOTUS has had more than its share of success predicting outcomes), what about being on the bench someday? Is there anything you aspire to do other than teach and write?

A. I try not to think too far ahead, because my predictions are almost always wrong. As for litigation, I would like to become more of a lawyer. Largely on Scott’s warnings, I’d be afraid of serving as a grunt in the trenches, as I would likely make some inadvertent procedural error that screws over my client. My on-the-fly command of the rules of evidence and procedure are not up to par. My skills are better suited for appellate arguments, and hopefully even before the Supreme Court one day. The right case will come along sooner or later. Even short of litigation, I regularly advise state and federal law makers on a whole range of policy matters. The best way to stop bad laws is to never enact them in the first place—or repeal them as soon as possible.

Article III is the ultimate brass ring. The likely reaction to that prospect is that my paper trail (the blog, the articles, the tweets, etc.) makes me unconfirmable.  As I’ve written elsewhere, I think this preference for people who played it safe gets the nomination process exactly backwards. We should insist on jurists who have written at length about their judicial philosophy on different issues—and done so in a position where they could be criticized.

A proven record, intellectual honesty, and a backbone, are indispensable attributes of a federal judge. The nomination shouldn’t be left to chance. Ironically, thanks to Harry Reid and the nuclear option, Presidents can now become more ambitious with their nominees. (I think we will see the fallout of Reid’s decision with the new administration). If a person like me, who has written on all manner of the law with honesty and directness, can be considered for a judicial appointment, then I would be much more confident in the direction of the federal courts. Until then, SCOTUS will remain a fantasy.