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Unintended Consequences

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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4 Responses

  1. Interesting. So the way to get bad judges to retire early is to give them a very good pension.

  2. anon says:

    Kaimi: it works with bad executives too!

  3. Bruce Boyden says:

    Wait, it gets worse. The negative reaction to FDR’s court-packing plan, as well as the reaction to his “Quarantine” speech in 1937, made him extremely gun-shy about openly proposing aggressive action to contain Germany before and after the outbreak of WWII. Instead of aid to European allies, the Administration sent aid indirectly through programs such as “Lend-Lease” and indirectly sanctioned Germany through export restrictions justified as keeping necessary war materials in the U.S. These sanctions, however, applied as well to Japan as to Germany, about which the Administration was less concerned, and after export controls were extended (without much internal deliberation) to heavy scrap metal and aviation gasoline, Japan concluded it had no option but to attack.

    So, cutting the judicial pension in 1932 may very well have had a significant impact on the course of WWII.

  4. Jim Maloney says:

    Interesting “Pearl” of wisdom from Bruce Boyden re: the Japanese decision to attack, but it may suffer from a logical fallacy (such as “Hypothesis Contrary to Fact” as explained in Max Shulman’s classic, Love Is A Fallacy, the example there being: “If Madame Curie had not happened to leave a photographic plate in a drawer with a chunk of pitchblende, the world today would not know about radium.”). In other words, Japan might have attacked whether or not the sanctions had ever been applied. As for K.D. Wenger’s supposition that the Four Horsemen were “bad” judges, I suppose all Supreme Court justices are “bad” in at least some of their opinions. (After all, ha ha, they’re not final because they’re infallible, they’re “infallible” because they’re final.) Examples? OK. Holmes had his infamous “three generations of imbeciles are enough” in Buck v. Bell, and then there was Jackson’s horrible decision in Wickard v. Filburn, which declared that a farmer’s failure to resort to the market for wheat to feed his family was enough of a nexus to interstate commerce to allow Congress to limit the amount of wheat he could grow. And if one wonders why no one dissented in that amazingly overbroad 1942 decision that opened the door to limitless federal power, well, it was because by then the Four Horsemen had all ridden on (i.e. died or retired). There was, as many a commentator has noted, no one left to dissent by 1942. So I for one am glad that the Four Horsemen lasted as long as they did, although I certainly don’t agree with every one of their decisions.

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