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One-Way Tickets

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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21 Responses

  1. Isn’t it a one-DAY ticket, not not a one-WAY ticket? Or, to be more precise, “a restricted railroad ticket, good for this day and train only.” In terms of the metaphor, the fact that it stops working tomorrow seems more pertinent than the fact that it strands you at your destination with no way back.

  2. Gerard Magliocca says:

    Well, I wasn’t using the term that Justice Roberts (Owen Roberts) used, but if you prefer one-day, fine. Now as to the substance of the post . . .

  3. TJ says:

    How about Shelley v Kramer?

  4. You might be right about the Roberts dicta on the CC, but the Medicaid/10th Amendment issue is a different story.

  5. Howard Wasserman says:

    How about all those obscenity cases from the 1960s, where the Court reversed conviction after conviction, but couldn’t agree on a standard for when speech is obscene. So Jacobellis v. Ohio, Redrup v. New York, etc.

  6. Orin Kerr says:

    Lee v. Florida, 392 U.S. 378 (1968), which overruled a prior precedent and created a statutory suppression remedy for wiretapped conversations in state court just two days before the President signed a new law into place that established a statutory suppression remedy in state court.

  7. TJ says:

    Orin, that would seem to be doctrinally unimportant going forward, but why is the result and judgment important (except obviously to the accused)?

  8. Steven Lubet says:

    Justice Scalia’s non-recusal in Cheney v. District Court, 542 U.S. 367 (2004)(not only one day, but also only one justice).

  9. Jim Maloney says:

    How about Federal Baseball Club v. National League, 259 U.S. 200 (1922), the case in which the U.S. Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball? A one-way (or one-day) ticket to a ball game…

  10. Gerard Magliocca says:

    Shelley is the best one mentioned so far, I think.

  11. brad says:

    Brown v. Board of Ed II (and in general all of the massive resistance cases)

  12. Michael Teter says:

    Chaplinksy (though maybe the result isn’t that important)

    Buck v. Bell

  13. Joe says:

    Shelley v Kramer had no doctrinal impact? Really?

    The #12 cases had impact — the Chaplinsky exceptions were cited in various cases and Buck v. Bell for some time at least gave validity to eugenics, in fact pushed some judges along who previously in fact ruled various laws unconstitutional on various grounds.

  14. AF says:

    Korematsu? Or does its status as an anti-precedent count as doctrinal impact?

  15. Michael Teter says:

    I’m not convinced that “cited in various cases” is the equivalent of doctrinal impact.

  16. David Bernstein says:

    The Court’s unanimous ruling in Schecter Poultry.

  17. Joe says:

    I don’t know what “doctrinal impact” means. Chaplinsky cited various species of speech that were deemed not to have enough societal importance to be worthy of much protection at all. The case was repeatedly cited to not protect such speech or for the general principle that all speech isn’t worthy of 1A protection. This includes by the USSC. Cf. Bush v. Gore, which Rick Hasen in his new book notes was cited all of once by the USSC, there as part of the title of a law review article in an concurrence.

  18. Michael Teter says:

    I suppose some of where we disagree, Joe, stems from our understanding of what doctrine emerged from Chaplinsky. The notion that some speech was not entitled to much or any constitutional protection pre-dated Chaplinsky. Chaplinsky’s focus was on fighting words, and the Court upheld Mr. Chaplinsky’s conviction. Since then, when has the USSC upheld a fighting words conviction? If the doctrine emerging from Chaplinsky is that states can constitutionally punish fighting words, that doctrine has had little impact because, in practice, states cannot actually punish fighting words (see, e.g., RAV v. St. Paul). Put another way, I don’t think that 1st Amendment doctrines or jurisprudence would be any different if Chaplinsky had never been decided or decided the other way. That suggests, to me, that it’s had no doctrinal impact.

  19. Joe says:

    The case was repeatedly cited to reaffirm the principle that “There are certain well defined and narrowly limited classes of speech, the prevention [p572] and punishment of which have never been thought to raise any Constitutional problem.”

    I think such a standard cite serves as some “doctrinal impact.” But, if you wish, yes, fighting words laws were upheld after its holding. The ruling was cited repeatedly (see, e.g., Feiner v. New York) for the point, at times upholding the law. Lower court rulings can be found. UNITED STATES v. ALVAREZ (June 2012) held they still could be targeted.

    RAV v. St. Paul does not say states cannot actually punish fighting words. As well as citing the excerpt above, the issue there was that such things (along with obscenity or what have you) have to be evenly applied. That is, no only fighting words to help blacks or regarding certain subjects.

  20. Michael Teter says:

    Again, I don’t take Gerard’s point to be one related to how often a case is cited. By including the ACA decision, a case certain to be cited, I interpreted the “one way” (or “one day”) concept to be about the actual effect, not a citations count.

    Feiner was an incitement case, not a fighting words case.

    And, you’re right that I should have been more precise when referring to RAV. While the Court in RAV doesn’t say that fighting words can’t be punished, the substance of the ruling, when coupled with the vagueness doctrine, make it nearly impossible for states to actually punish fighting words. Thus, Chaplinsky’s doctrinal impact with regards to fighting words is minimal, at best.

  21. Michael J.Z. Mannheimer says:

    How about Clinton v. Jones? Hugely important on its own, having led to only the second impeachment of a President, but the issue is unlikely to arise again with any sort of frequency.