Remedies 101

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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3 Responses

  1. AF says:

    Well, under Marks the narrowest concurring opinion is controlling “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices.” Dismissing a case as improvidently granted is not “deciding a case.” So I would think that there wouldn’t be any controlling opinion.

  2. mls says:

    I would suggest that you listen to the argument and see if you still think those are only possible outcomes. What seemed to emerge most clearly was that no one (with the possible exception of Justice Ginsberg) seemed to think that the SG’s argument (ie, a ruling that applied only to California and other states that recognize civil unions) makes any sense. Moreover, none of the liberal justices except for Ginsberg seemed entirely comfortable with a broad 50-state ruling either. Standing was a closer question, but I did not get the impression that the justices were particularly impressed with that argument either.

    Dismissal as improvidently granted may be the leading contender, but reversal is certainly a strong possibility (at least as far as one can tell from the argument). If there were any jurisprudential basis for it, one might think the Court would uphold Prop 8 but say that if later experience confirms that SSM has no ill effects, the issue can be revisited.

  3. Ira Matetsky says:

    The closest thing to this situation may be Board of Education, Island Trees School District v. Pico, 457 U.S. 853 (1982). See footnote 1 of Justice Rehnquist’s dissenting opinion, criticizing Justice White’s opinion concurring in the judgment.

    There were also a number of FELA cases in the 1950s in which Justice Frankfurter voted to dismiss as improvidently granted and refused to vote on the merits, but I don’t recall whether these votes ever affected a result.