Joseph Blocher

Bio: Joseph Blocher is an academic researcher from Duke University. The author has contributed to research in topics: Constitutional law & Doctrine. The author has an hindex of 7, co-authored 71 publications receiving 382 citations. Previous affiliations of Joseph Blocher include University of Notre Dame & University of Tulsa.

Institutions in the Marketplace of Ideas

Abstract: If any area of constitutional law has been defined by a metaphor, the First Amendment is the area, and the “marketplace of ideas” is the metaphor. Ever since Justice Holmes invoked the concept in his Abrams dissent, academic and popular understandings of the First Amendment have embraced the notion that free speech, like the free market, creates a competitive environment in which the best ideas ultimately prevail. But as with the free market for goods and services, there are discontents who point to the market failures that make the marketplace metaphor aspirational at best, and inequitable at worst. Defenders of the free economic market have responded to these criticisms by developing a thicker understanding of how the market actually functions. Their most successful model is the New Institutional Economics, which incorporates and explains the transaction costs and institutions that populate and effectively regulate that market. The marketplace of ideas model, however, remains faithfully wedded to a neoclassical view that depends on a perfectly costless and efficient exchange of ideas. It is thus vulnerable to the Copyright © 2008 by Joseph Blocher. † Yale Law School, J.D. 2006; University of Cambridge, M.Phil. 2003; Rice University, B.A. 2001. Many thanks to Paul Horwitz, Marin K. Levy, Scott Moss, Neil Richards, Bertrall Ross, Michael Siebecker, and Nat Stern for their invaluable feedback on earlier drafts of this Article, and to Jonathan Pahl and Kish Vinayagamoorthy for exceptional editorial assistance. 01__BLOCHER.DOC 4/16/2008 8:29:05 AM 822 DUKE LAW JOURNAL [Vol. 57:821 same criticisms economists answered decades ago, and it fails to take into account the rich view of market mechanisms and institutions they have developed since. First Amendment scholars led by Frederick Schauer have begun to lay the groundwork for a solution by describing an “Institutional First Amendment” that would accord special treatment to certain institutions like schools and the press. But just as the marketplace of ideas fails to account for institutions, the Institutional First Amendment fails to account for the marketplace of ideas. As it turns out, the two theories are not only reconcilable but complementary. This Article brings them together, using the New Institutional Economics to describe the “speech institutions”—such as schools and universities—that play the same cost-reducing role in the marketplace of ideas as other institutions do in the market for goods and services. Courts should defer to the speech rules of marketplaceof-ideas-enhancing institutions for the same reason and to the same degree that economists defer to the private norms of marketenhancing institutions. The Article then tests the descriptive and normative validity of this “New Institutional First Amendment,” finding that it both explains and justifies much of the Court’s school speech doctrine, including its 2007 ruling in Morse v. Frederick. It also justifies the special status of universities as speech institutions, and suggests an explanation for some of the current weaknesses in commercial speech doctrine. By addressing the “economic” objections to the marketplace metaphor, the Article attempts to better describe, explain, and rehabilitate the marketplace of ideas. 01__BLOCHER.DOC 4/16/2008 8:29:05 AM 2008] NEW INSTITUTIONAL FIRST AMENDMENT 823

Combatant Status Review Tribunals: Flawed Answers to the Wrong Question

Abstract: This Comment argues that the Combatant Status Review Tribunals were not competent to deny Prisoner of War status because they were charged only with identifying enemy combatants, a broad category that by its own terms includes many POWs. Given the substantial overlap between the definitions of "enemy combatant" and "POW," a CSRT's affirmative enemy combatant determination actually supports a detainee's POW status. Thus, even after their enemy combatant status has been adjudicated by the CSRTs, Guantanamo detainees should still be treated as presumptive POWs.

Markets and Sovereignty

Abstract: The past few decades have witnessed the growth of an exciting debate in the legal academy over the tensions between norms and philosophical commitments to the market inalienability of certain items on the one hand and to economic pressures to commodify on the other. Sex, organs, babies and college athletics are among the many topics that have received attention. The debates have often have proceeded, however, as if they involve markets on one side and the state on the other, with the relevant question being the ways in which the latter can or should try to facilitate, restrict, or rely on the former. In this essay, we approach the relationship between markets and sovereign control from a different perspective, and contemplate more radical versions of their relationship. What would it mean for governing authority itself to be market alienable? And what would it mean if the people — rather than the state — were the ones who set the prices and controlled the transfers? Could a “market for sovereign control” contribute to welfare-enhancing changes in governance?

School Naming Rights and the First Amendment's Perfect Storm

Abstract: In the past five years, public schools across the country have begun to explore a new avenue of fundraising: selling naming rights to school facilities. The popularity and monetary value of these sales, however, only highlights the importance of the First Amendment concerns they raise. This Article uses school naming rights as a lens through which to examine the conflicts between government speech, commercial speech, and forum analysis, three categories of First Amendment analysis that are simultaneously and problematically implicated by school naming rights sales. Courts and scholars have long noted the internal ambiguities within these three categories, but have not yet explored the sometimes irreconcilable conflicts among them. As the growth of school naming rights shows, government sponsorship arrangements collapse many of the artificial divisions between the First Amendment's categories, and demonstrated the need for a better understanding of the categories' interactions. This Article identifies — and attempts to resolve — some of the border disputes between these poorly defined and increasingly important areas of First Amendment law.

Combatant Status Review Tribunals: Flawed Answers to the Wrong Question

Abstract: This Comment argues that the Combatant Status Review Tribunals were not competent to deny Prisoner of War status because they were charged only with identifying enemy combatants, a broad category that by its own terms includes many POWs. Given the substantial overlap between the definitions of "enemy combatant" and "POW," a CSRT's affirmative enemy combatant determination actually supports a detainee's POW status. Thus, even after their enemy combatant status has been adjudicated by the CSRTs, Guantanamo detainees should still be treated as presumptive POWs.

United States V. _____

Abstract: FACTS An officer in Midvale, Utah was doing some paperwork in his patrol car when he was approached by man, later identified as Nitokalisi Fonua (hereinafter, “Nick”). Nick “looked suspicious,” mainly because he was “jittery, looking around and appeared to be very nervous.” Nick’s suspicion rating jumped dramatically when, for no apparent reason, he informed the officer he had stolen a white GMC Blazer, which he had parked nearby. Naturally, the officer asked Nick if he would show him the Blazer, and Nick said sure. When they located the Blazer, the officer walked over and looked inside. The first thing he saw was a sawed-off shotgun on the back seat. Then he noticed some markings on the shotgun, “markings that looked gang-related.” Nick told the officer that the key to the Blazer was inside his motel room at the Days Inn. Also in the room, he said, were his “cousins,” meaning “people he knows from the streets.” The officer asked Nick “if we could obtain the keys to the vehicle so we could turn those back over to the owner.” Nick said the keys “were in the room somewhere” and that he “didn’t care” if the officer went in and retrieved them. Nick also gave the officer his key to the room. When backup arrived at the motel, officers knocked on the door which was opened by a man named Vake. There were two other occupants: a woman and Kimoana, the defendant. By this time, the officers were aware that Kimoana—not Nick—had rented the room. The first thing the officers saw as the door opened was the woman pointing “an unidentified black object” at the wall. Concerned for their safety, they ordered the occupants to “show their hands.” Then they pat searched them. Finding no weapons (the “unidentified black object” was a television remote control), they holstered their guns. Although the officers already had Nick’s consent to search the room, they sought and obtained consent from Vake. During the search, they found a “long-barreled revolver” under a mattress. As the result, Kimoana was convicted of being a felon in possession of a firearm.

Land-based investments for rural development? A grounded analysis of the local impacts of biofuel feedstock plantations in Ghana.

Abstract: The rapidly growing biofuel sector in Africa has, in recent years, been received with divided interest. As part of a contemporary wave of agricultural modernization efforts, it could make invaluable contributions to rural poverty. Conversely, it could also engender socioeconomically and environmentally detrimental land use changes as valuable land resources are converted to plantation agriculture. This research analyzes the impacts and impact pathways of biofuel feedstock development in Ghana. It finds that companies are accessing large contiguous areas of customary land through opaque negotiations with traditional authorities, often outside the purview of government and customary land users. Despite lack of participation, most customary land users were highly supportive of plantation development, with high expectations of ‘development' and ‘modernization.' With little opposition and resistance, large areas of agricultural and forested land are at threat of being converted to plantation monoculture. A case study analysis shows that this can significantly exacerbate rural poverty as communities lose access to vital livelihood resources. Vulnerable groups, such as women and migrants, are found to be most profoundly affected because of their relative inability in recovering lost livelihood resources. Findings suggest that greater circumspection by government is warranted on these types of large-scale land deals.

Governing Extractive Industries: Politics, Histories, Ideas

Abstract: Proposals for more effective natural resource governance emphasize the importance of institutions and governance, but say less about the political conditions under which institutional change occurs. This book synthesizes findings regarding the political drivers of institutional change in extractive industry governance. The authors analyse resource governance from the late nineteenth century to the present in Bolivia, Ghana, Peru, and Zambia. They focus on the ways in which resource governance and national political settlements interact. Special attention is paid to the nature of elite politics, the emergence of new political actors, forms of political contention, changing ideas regarding natural resources and development, the geography of natural resource deposits, and the influence of the transnational political economy of global commodity production. National elites and subnational actors are in continuous contention over extractive industry governance. Resource rents are used by elites to manage this contention and incorporate actors into governing coalitions and overall political settlements. Periodically, new resource frontiers are opened, and new political actors emerge with the power to redefine how extractive industries are governed and used as instruments for development. Colonial and post-colonial histories of resource extraction continue to give political valence to ideas of resource nationalism that mobilize actors who challenge existing institutional arrangements. The book is innovative in its focus on the political longue durée, and the use of in-depth, comparative, country-level analysis in Africa and Latin America, to build a theoretical argument that accounts for both similarity and divergence between these regions.