Joseph Blocher: Homecoming for a Legal Scholar

As a law student, Joseph Blocher wanted to be a clinical professor. He co-chaired the Legal Services organization at Yale Law School, from which he graduated in 2006, worked in different clinics and remains deeply committed to public interest and pro bono work.

But during his first clerkship with the U.S. Court of Appeals for the Eleventh Circuit, his love of scholarship won out.

"I had all these ideas," said Blocher, who had published scholarly articles at Yale and during his earlier graduate studies in land economy at Cambridge University. "So I started writing articles on weekends. And after I had done three of them, I thought, ‘Wouldn't it be great if I could do this all the time?'"

Having emerged as a productive scholar in the areas of constitutional and property law, Blocher has his chance he joined the Duke Law faculty July 1 after completing a clerkship with the Second Circuit of the U.S. Court of Appeals.

Blocher's research and scholarship, most recently focused on the First and Second Amendments and the federal courts, explores the role of institutions in the creation, interpretation and application of legal theory and doctrine. He is especially interested, he said, "in considering the extent to which informal institutions receive or should receive deference from the formal legal system and the ways in which that deference manifests itself in doctrine."

In a paper published in the Duke Law Journal in 2008, "Institutions in the Marketplace of Ideas," brought together the leading metaphor for the First Amendment the marketplace of ideas with one of the leading economic theories, the "new institutional economics."

And in an article recently published in the New York University Law Review, "Categoricalism and Balancing in First and Second Amendment Analysis," Blocher parses the majority and dissenting opinions in the Supreme Court's 2008 ruling in District of Columbia v. Heller, the so-called D.C. gun-rights case, for clues to the standard of review that will govern Second Amendment cases going forward.

Having worked extensively on the case during a year of appellate practice at O'Melveny and Myers in Washington, D.C. under Duke's Walter Dellinger, who argued the case in the Supreme Court on behalf of the District of Columbia Blocher sees Heller as just the opening salvo in a body of modern jurisprudence on the subject.

"The next big battle or series of battles will be about who gets to invoke the Second Amendment and how much of a gun right it protects," he said.

Justice Antonin Scalia in his majority opinion took a categorical approach to the gun right, excluding certain people, places and kinds of arms from Second Amendment protection, Blocher said. In dissent, Justice Stephen Breyer used more of a balancing test. "You would ask, ‘In any of these particular cases, or in the case of any particular law, does the benefit outweigh the burden given whatever weight we want to attach to those?' Those are very different ways of creating a standard for review."

The Heller court never fully articulated what it views as the actual purpose of the Second Amendment, he adds. "We don't know for sure if it's an amendment intended to prevent tyranny by the government or one intended to protect people's right to self-defense against criminals. And those lead to very different places in terms of categories you create in terms of what kinds of guns are protected or what kinds of people can wield them."

"Joseph Blocher has the qualities we look for in an entry-level appointment a taste and aptitude for scholarship, high energy, creativity, demonstrated productivity and enthusiasm for working with students," said Katharine T. Bartlett, A. Kenneth Pye Professor of Law and chair of the entry-level appointments committee. "I am thrilled that he is joining this faculty."

For Joseph Blocher, launching his academic career at Duke isn't just a matter of finding a welcoming scholarly community. It's a homecoming.

Blocher is currently the only Durham native on the governing faculty, a distinction previously held by the late Professor Robinson Everett.

"For me, accepting Duke's offer was a no-brainer," said Blocher. "Durham has a mix of nice folks, great culture, and incredible research institutions, all within reach. It's a wonderful place to be a professional: There are a lot of people doing a lot of exciting things."

Given that his father is a member of the faculty at the University of North Carolina-Chapel Hill, Blocher admits to being a die-hard Tar Heel fan an allegiance he shares with his wife, Marin Levy, who joined the Duke Law faculty in the fall as a lecturing fellow.

"I was able to keep my allegiance quiet during my Duke interviews," he said.