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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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24 Responses

  1. Donald says:

    Yes, it requires courage to defend a morally repugnant legal position But that’s the kind of courage that’s not commendable, so I don’t mind that the firm lacks it.

    There’s a difference between defending unpopular clients or actions to vindicate larger legal principles (e.g., ACLU-types defending really ugly speech by nasty people to protect free speech generally), and, on the other hand, helping to enshrine terrible discriminatory principles into law. The firm had chosen to do the latter.

    BUT, switching gears:

    I confess I’m affected by my negative feelings toward DOMA, and perhaps everyone else should admit to that too (whatever their feelings about DOMA may be). Would the Professor criticize a firm for refusing to defend miscegenation laws or the constitutionality of school segregation? My point isn’t to compare those things (necessarily) to DOMA — My point is that we are all influenced by the underlying issues at stake, and there are some laws we just don’t consider it moral/ethical/right to defend. Some people don’t like DOMA but don’t consider it THAT bad, so they defend Clemens. Others DO consider it THAT bad, so they attack him. If somebody says “I oppose DOMA, but think Clemens should defend it,” the person probably doesn’t think DOMA is as morally repugnant as I think it is. And that person probably wouldn’t say the same thing about laws that he or she DOES find truly morally repugnant.

  2. Gerard Magliocca says:

    I defended clients on death row. I didn’t agree with what they did.

  3. Logan says:

    In my experiences (which are limited) most individuals will gladly just give it up without any hassle. Normally that’s because a) they simply don’t care b) they don’t realize/think there is any monetary value in the documents. It’s usually nice to offer them something though as a good will gesture.

  4. Donald says:

    Professor, I commend your criminal defense work!! You were defending an unpopular client, which is important. But you weren’t defending a morally repugnant legal PRINCIPLE that would harm millions of current and future Americans — much less were you trying to write it into constitutional jurisprudence. You were standing up, presumably, for criminal procedure rights that you rightfully believe in. And you were trying to make sure an individual was treated fairly. Defending DOMA is defending the legality and constitutionality of something that is morally repugnant. You weren’t doing that in your defense work.

    Somebody will have to defend DOMA (and apparently it will be Clement with a new firm). But I would never applaud the attorney’s courage for doing so. In contrast, I DO applaud you for your criminal defense work.

  5. Donald says:

    P.S. When you say “I didn’t agree with what they did” (speaking of your death row clients), I assume you didn’t DEFEND “what they did” either. For example, assuming a client of yours was guilty of murder, I assume you didn’t say “The murder of Victim X by my Client Y was constitutional, and similar murders should also be considered constitutional.” Moving to the much-much-less-extreme but still-morally-fraught context of DOMA, I refuse to call somebody “courageous” for defending a morally awful position that will establish the constitutionality of a terrible form of discrimination. It’s just totally different from what you did.

  6. Gerard Magliocca says:

    Well, you could be for same-sex marriage and for federalism at the same time.

  7. dave hoffman says:

    Gerald,
    I confess I don’t quite understand the point. The firm is a for profit entity, and it took a paying client. Presumably, it then untook the client because it thought it would lose money, clients, recruits, or some combination of all three. Making this about courage (as if the firm was a crusading lawyer, instead of a behemoth) seems sort of a distracting question, at least to me.

  8. Donald says:

    Exactly: It comes down to one’s feelings about the underlying issues and principles. Not an issue of courage. I think we agree.

  9. Gerard Magliocca says:

    Oh, they may have made the best financial decision–I don’t know. But would you feel the same way if a firm representing Guantanamo detainees dropped them as clients under pressure from outsiders?

  10. dave hoffman says:

    Gerald,

    Well, yes, on the question of whether it demonstrated a profit maximizing entity’s “courage” or lack thereof.

    Dave

  11. Gerard Magliocca says:

    So profit-maximizers can never be judged by moral standards? That’s a perfectly reasonable position–most corporations operate that way. I just think it’s wrong. But perhaps that’s just because I am not in it for the money.

    I should add that if your moral standard is, “Don’t defend DOMA in court because it’s hateful,” rather than my “Every legal position deserves vigorous representation,” then that’s fine. But those are both different from “Do whatever is better for the bottom-line.”

  12. Eric Biber says:

    Apparently, there was more to it than just political pressure. It seems that the contract that the House wanted would have severely restricted the firm’s work in other matters, and that was a major problem for the firm as a whole. That makes this seem much more complicated than simple “cowardice.”

    http://prawfsblawg.blogs.com/prawfsblawg/2011/04/the-real-reason-why-ks-dumped-doma.html

  13. Gerard Magliocca says:

    That would make a difference, though you wonder whether K&S even tried to negotiate about those proposed restrictions.

  14. dave hoffman says:

    Moral? Who said anything about judging them on moral standards? I mean to say that it is inapt to say that a firm has courage, cowardice, zest-for-life, or even a sense of humor.

  15. Shag from Brookline says:

    What was the role of Clement in King & Spaulding originally taking on this assignment? Or his anticipated role in tasking the assignment? It seems that more details are needed to determine why Clement resigned from the firm before suggesting his decision was principled or courageous.

  16. Gerard Magliocca says:

    Dave,

    I think this is just an agree-to-disagree situation. Firms have a social role that is independent from their economic one, and in that context they can be judged along the lines that you reject.

    Now I agree that there is a difference between a paying client (in this case, Congress) and a pro bono client (like my death penalty work back in the day). But suppose a firm was representing a terrible swindler (e.g., Bernie Madoff) who was paying them in a white-collar criminal case. Angry people denounce the firm and threaten a boycott. The firm then says, “OK, we’re dropping him as a client” on the eve of trial. That’s just fine from an ethical standpoint?

  17. dave hoffman says:

    Ethical? Well, I think there are rules about dumping a client on eve of trial!

    Here, it looks like they didn’t fully vet the conflicts that the new representation had with existing clients.
    http://tpmdc.talkingpointsmemo.com/2011/04/behind-a-major-law-firms-decision-to-ditch-its-defense-of-doma.php?ref=fpa

    Is it courageous to stiff existing clients so that you can get a high profile new representation?

  18. dave hoffman says:

    Also, I continue to find the analogy to a pro bono death penalty representation a stretch. The House of Representatives has money to burn on this (apparently).

  19. Gerard N. Magliocca says:

    Too high profile, apparently.

  20. Gerard N. Magliocca says:

    Here’s Seth Waxman on Clement’s decision:

    “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote [in his resignation letter from King & Spalding]. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions. Having undertaken to defend DOMA, he’s acting in the highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter.”

  21. dave hoffman says:

    Indeed. I’m reminded of David Boies parting with Cravath over his representation of the Yankees (when other clients objected). This stuff happens: there’s no call to make it into a morality play. At least that’s my view – as you say, agree to disagree.

  22. Shag from Brookline says:

    Portability protects Clement’s principles. Presumably the House GOP engaged Clement to represent its interests, who happened to be a partner in King & Spaulding. The House GOP still has Clement in his new firm. When the assignment came to Clement, and thus King & Spaulding, how was it vetted by the latter? How does a partner bind his/her law firm in taking an assignment? Of course, conflicts have to be addressed. Perhaps there are other aspects to be addressed, such as the proposed limitations on other attorneys in the firm. There’s more to this story than has been revealed. Clement seems to have made it a public controversy with the disclosure of his letter of resignation. Apparently simply resigning without disclosing his letter did not suit him.

  23. Noa K says:

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