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Interpretive Fictions in Constitutional Law

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Anon says:

    Ex Parte Young to get around the Eleventh Amendment

  2. ..anon says:

    does in rem jurisdiction (“the thing committed the crime”) implicate constitutional law?

  3. Perhaps one of the greatest legal fictions we have is the modern selective incorporation doctrine through the due process clause.

    Another fiction is treating a corporation as a person.

    I recently wrote a post on constitutional legal fictions that may be useful http://joshblackman.com/blog/?p=1079

    Also Eugene Volokh wrote an interesting post on believing in legal fictions http://www.volokh.com/posts/1169074858.shtml

  4. My favorite such fiction is that employees “agree” to the “contract” of at-will employment. While predominantly a common-law concept, it gets play also when considering the constitutional rights of public employees.

  5. Alan says:

    The guilty-property fiction. (Not to criticize this particular fiction.)

  6. “Why, then, do we continue to insist that we have a codified Constitution?”

    Because we do. We’re just violating it. But that doesn’t mean we don’t have one.

    How about the “enrolled bill” rule?

  7. Phil Neujahr says:

    Seems like they bring something unique to the table that most texts can’t…

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