Over the next couple of months, the CockleBur will provide a series of conversations about the law with a number of prominent legal journalists, practitioners, scholars, policy makers, and social justice advocates. I chose these particular people because I think they can bring a unique perspective about topics such as advocacy, legal education, the legal profession, how the media covers the law, and how the law can work social justice change.
Josh Blackman is an Assistant Professor of Law at the South Texas College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh is the author of Unprecedented: The Constitutional Challenge to Obamacare. He also is the founder and President of the Harlan Institute, the founder of FantasySCOTUS.net, the Internet’s Premier Supreme Court Fantasy League, and blogs at JoshBlackman.com.
Q: Josh great to have you to discuss the law and your new book Unprecedented. First up, what makes teaching the law enjoyable?
A: Hi Shon. First, kudos to you on all of your successes as an author, law student, and soon-to-be clerk. It’s been a pleasure knowing you, and watching you thrive these past few years.
I’ve always had a passion for education. Both of my parents, among various professions, have been teachers. When I was a teen, I was a computer tutor for senior citizens in my neighborhood. Shortly after graduating law school, I founded the Harlan Institute, a non-profit dedicated to teaching high school students about the Supreme Court and the Constitution. While clerking for Judge Gibson in the Western District of Pennsylvania, I had the wonderful experience of teaching two classes alongside him. I quickly realized that I found my calling, and feel so honored that I can do this for a living.
I am now in my second year of teaching, and I absolutely love it. It is hard to describe the joy I get from helping students understand things. That exact moment where a student’s look goes from confused to in control—when the proverbial light bulb goes on—is the best part of the job. Also, it is so much fun to be up in front of students. They bring so much verve and passion to the classroom, which energizes me daily.
Q: You aren’t too removed from attending law school yourself. Do you find that being a recent law school grad has helped you become a better law school professor?
A: Being a new professor offers some pros and cons. First, the cons. Teaching has a really steep learning curve. No matter how much you think you know, there is always more to know, and prepare for class. And there is a big difference between knowing something, and being able to understand it yourself, and being able to teach it. You have a very short period of time to master all the material for a course. And I had to develop and refine, in quick succession, approaches to teaching. In the past, I had taught a small 15-person seminar class. There, I can get to know each student well, and adjust my teaching method for them. Teaching an 85-person lecture, where every student has an idiosyncratic (and unknown) learning style offers very different dynamics.
But newness does have its advantages. Perhaps most importantly—and I stress this with my students—is that I’m not set in my ways. At several points during the semester, I solicit anonymous feedback (both good and bad) to see how I’m doing. If the students tell me that something is not working, I can fix it (or at least try to fix it) right away. If something is working well, I’ll do more of it. If other things aren’t efficient, I may scrap it. I’ve found that each class has its own persona, and quirks, so I try to customize the class accordingly. Some react better to lecturing, other react better to questioning, others like interesting stories, some don’t. So I switch it up based on what works. Last year I taught the same class twice in a day. The two classes, though they covered the same material, were always structured totally differently. Flexibility is the key.
In addition, I think my proximity to law school helps me put myself back into the mindset of a bewildered 1L. When I arrived at law school as a law student, I had no clue what I was doing (see this essay about my first year of law school http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2118335). Whenever I teach a case, I re-read it from the perspective of a 1L who has no idea what is going on. I try to strip myself of any knowledge I’ve learned, or even the fact that I’ve read the case several times before. I re-read it as if I just got out of 1L orientation. This helps. So if there’s a phrase I didn’t know back in law school, or a concept the book glosses over, but is essential to understanding the case, I’ll be sure to focus on it in class. I try to build all concepts from the ground up, in discrete steps that are easy to follow. Perhaps this will fade over time. I hope not.
Also, at least for the present moments, my pop-culture references are current. I suspect those will also fade over time.
Q: You are a pretty tech savvy guy, do you incorporate technology into your teaching?
A: Absolutely. I use technology in the classroom in several ways. During class, I rely on the class blog (for example, http://joshblackman.com/blog/classes/property-i-fall-2013/) to share material. Each class has its own blog post where I include photos, maps, and other graphical aids to help illustrate the case. Students respond well to visuals. In addition during each class, I project two documents. First, lecture notes, and second a live chat. The lecture notes are typed in real time. I start off each class with a blank document, and develop the notes as we go along. I have a general idea of what I want to cover, but the beauty of starting with a blank slate is that I can write up whatever I need to. Unlike powerpoints, which force you into a specific route, here I can present topics out of order, add examples or questions I make up on the spot, or reiterate concepts students don’t get. These lecture notes are available as Google Docs, which students can view (but not edit) on their own computers.
The live chat is an open chatroom where students can pose questions or comments (I ask that students sign comments with their first name and last initial). This accomplishes several goals. First, during a lengthy discussion where I don’t have time to get to questions, a student can post a question. Once a discussion is over I can turn to it. Or, if I see the question is relevant, I can jump in. Also, with an 85-person lecture, it helps to democratize it. No longer will I only hear from one student at a time. Several students can collaborate at once. This works with varying degrees of success depending on the class. Some students really like it. Some don’t. There is no requirement that students use it. If they don’t, I leave it open, empty. And of course, students can always raise their hand to ask questions the old-fashioned way. My goal of using the technology is to supplement, rather than replace traditional pedagogy. The technology is nothing more than a tool to improve technology, not an end by itself.
Also, I record all of my lectures on YouTube. They are available to watch them immediately after class. There are pros and cons to this. The obvious risk is that students may skip class and just watch the video. But, the downside to that approach is only my voice is picked up on the mic. You can’t hear any of the student answers, which make up the bulk of discussion. Students tell me that these videos are helpful to review after class to fill in blanks in notes, and also right before exam time to re-watch key lectures. I’ve also been pleasantly surprised that students from other schools write me, and tell me they find these videos very useful. At some point I would like to record Khan-Academy-style videos for law school classes.
Q: In between teaching and blogging and running FantasySCOTUS, you’ve manages to write the definitive account of the Obamacare litigation in your new book Unprecedented: The Constitutional Challenge to Obamacare. Beyond the title, explain what the book is about and why you wanted to write it?
A: In 2012, the United States Supreme Court became the center of the political world. In a dramatic and unexpected 5–4 decision, Chief Justice John Roberts voted to narrowly save the Affordable Care Act, commonly known as Obamacare. Unprecedented tells the inside story of how the challenge to Obamacare raced across all three branches of government, and narrowly avoided a constitutional collision between the Supreme Court and President Obama.
I was inspired to write this book because, inadvertently, I was present at the birth of the challenge. On November 13, 2009, a group of Federalist Society lawyers met in the Mayflower Hotel in Washington, D.C., to devise a legal challenge to the constitutionality of Obamacare. I happened upon this conversation by chance. It seemed a very long shot, and was dismissed peremptorily by the White House, much of Congress, most legal scholars, and all of the media. At the time, I didn’t think much of it. Two years later the fight to overturn the Affordable Care Act became a political and legal firestorm. Even a year after the Supreme Court narrowly upheld the Affordable Care Act, it continues to be extremely polarizing, and even caused this government shut down. This law continues to be unprecedented in every way.
Q: I know you did a number of interviews to write Unprecedented. Tell us about one interviewer that surprised you, either because of something the interviewer said or something about their personality that you weren’t expecting?
A: For this book, I conducted interviews with over one hundred of the people who lived this journey—including the academics who began the challenge, the attorneys who litigated the case at all levels, and Obama administration attorneys who successfully defended the law.
The most interesting interviews were with current and former DOJ lawyers. Throughout the litigation, we always knew what the people on the outside of government thought—they would tell anyone with a microphone. But what went on inside the government? If you read my book, I think some of their strategies, and approaches to issues may surprise you. Needless to say, the lawyers in the Solicitor General’s office are brilliant, and viewed this case to win it. And, they did.
Q: In your opinion, who (besides the Chief Justice, of course) was most responsible for saving the Affordable Care Act?
A: I would give President Obama credit all around. Remarkably, over the last four years, this unpopular law has persevered, against all odds—from legislative, constitutional, and electoral challenges—despite never once gaining ratification from even a plurality of Republicans. President Obama steadfastly believed in this law in his first term, and he was intent on passing it at any cost. Even after the case went up to the Supreme Court, he continued to vociferously defend the law in the Court of public opinion, even urging the Justices to exercise their “jurisprudence carefully,” and not return to the Lochner era. Now, I don’t approve of his behavior, but he, perhaps more than anyone else, is responsible for saving this law. What this means going forward is a very open question.
Q: In Unprecedented, you write that: “In the blink of the eye, the Affordable Care Act went to the brink of unconstitutionality and back. Along that rapid journey, lawyers and scholars from across the philosophical spectrum were so focused on developing, refining, and advancing constitutional arguments at breakneck speeds that they were often unable to pause and appreciate the monumental importance of what was happening.” Do you think the legal community now understands how important the Obamacare litigation was to constitutional history?
A: I don’t know that we will fully understand the significance of this litigation for some time to come. My aim in writing this book has been to tell the story of what occurred and provide an opportunity to reflect on what it means for our government, our laws, and our Constitution. The legacy of the Affordable Care Act is yet to be written, but its history has already begun.
Q: Thanks again, Josh, for taking the time to answer these questions. Now the last one: What is next for you? What is the next big project on the horizon?
A: I always have a lot of things going on. First, the Harlan Institute, a non-profit I run, has partnered with The Constitutional Sources Project (ConSource) to host the second annual Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on National Labor Relations Board v. Noel Canning Corporation. The grand prize for the winning team is a trip to Washington, D.C. to attend ConSource’s Constitution Day celebration in September 2014. Today, I had the honor of meeting the two winners from the 2013 competition who attended Justice Scalia’s lecture. Interested high school teachers and students can sign up for the competition here.
Second, the 5th season of FantasySCOTUS.net kicks off on the first Monday in October. We now have north of 15,000 people making predictions about all cases argued before the Court, along with our real-time prediction tracker (I’ve written about our accuracy in this article). Get your picks in early for Canning, Bond, Schuette, and others.
I have a number of other articles in the works on topics including what happens if data is speech, legislative responses to mass shootings for a symposium issue of the Connecticut Law Review, 3D Printing and the Second Amendment for a symposium issue of the Tennessee Law Review (a key application of how data and speech are connected), Kennedy’s Constitutional Chimera (blogged about earlier), the story behind United States v. Carolene Products (did you know that the Filled Milk Act was struck down in 1972), the implications of computer systems that can offer legal services (some good, some bad), and others. I encourage you to check out JoshBlackman.com, or follow me at@JoshMBlackman to keep apprised.
Thanks so much Shon. Good luck with 3L, graduation, and beyond!