Taming Exotic Beasts

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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2 Responses

  1. Kirsten says:

    Orin’s cynicism that the argument may work as “Burkean excuse for doctrinal innovation” seems plausible. But I think there can also be a natural institutional bias at work where judges sincerely forget how different the legislative function is supposed to be from that of a common law judge. Abstractly, it should be obvious–no need to approve a Bentham or a Waldron–modern legislation–is definitionally *supposed* to be a field that’s much more open to novelty and experimentation, with a different relationship to tradition, right? But judges may forget this in practice, turning judicial review into a “you legislators need to be more like us”. For example, there are election law cases suggesting that a gov’t actor is safer from gerrymandering liability if it uses “traditional districting principles” when none of these principles–much less the larger congressional or state choice to even have a districting system–was mandated by the US constitution or the state constitution in the first place. (In some state constitutions, yes, some such principles have been mandated and justified as anti-gerrymandering protections, see, e.g., Jim Gardner’s article.) But in other states and in the US constitution–the choice not to do so can be seen as a deliberate framing decision not to foreclose alternatives, including innovative ones. It would be a shame if judicial review incidentally makes it harder to experiment with, or even to imagine, better electoral systems, but this does seem to be the drift of some of the reasoning.

    I haven’t done any reading about the history of the canon prescribing narrow construction of statutes in derogation of the common law, but I wonder if these types of Arguments from Novelty or Strangeness are all of a piece. The canon could be taken as a common sense nostrum about fidelity to legislative intent, making it a close analogy to the canon against implied repeals of statutes. (“The legislature probably did not mean to undo a century of judicial construction by means of a lone sentence in a low-salience law”.) Or “common law” in the canon could be taken as referring only to the subset of common law that has the higher status of constitutional common law in the older “ancient constitutional” sense (e.g., the public square tradition of assembly rights), turning the common-law canon into a variety of the constitutional avoidance canon. If, however, the canon is taken as grounds for heightened scrutiny or judicial bias against a statute solely because it is novel or surprising by the standard of what has come before? Then I think this should be shot down as judges forgetting themselves.

  2. Brett Bellmore says:

    Could be they simply regard extreme novelty as a red flag, on the basis that such novelty MIGHT be due to legislators not previously having worked up the nerve to violate a constitutional rule. It’s probably a good heuristic for taking a second look, though it shouldn’t drive the ultimate decision.