Author Archive for gerard-magliocca

Negligent Corpse Mishandling

posted by Gerard Magliocca

One of my favorite exotic torts (especially as we reach the end of the semester) is the negligent mishandling of corpses.  This cause of action constitutes an exception to the principle that recovery for the negligent infliction of emotional distress is limited to those who observe an accident in which someone close to them is injured or killed. Under the Restatement (Second):  ”One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.”  Classic examples would include spilling the body from the casket or putting the wrong one in the grave.

Of course, one could say that this is a claim by the deceased for their interest in the proper disposition of their remains that is being brought by the estate.  But it probably makes more sense to think about this as an emotional distress claim of the living that is just one step removed from witnessing a death.

  November 20, 2009 at 6:11 am   Posted in: Tort Law   Print This Post   2 Comments

KSM on Trial

posted by Gerard Magliocca

The decision to try some of the ringleaders of 9/11 in the District Court for the Southern District of New York raises many interesting questions.  Here are a few below the fold:

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  November 19, 2009 at 6:17 am   Posted in: Current Events   Print This Post   11 Comments

Yes, Prime Minister on Political Loyalty

posted by Gerard Magliocca

“Gratitude is merely a lively expectation of favors to come.”

  November 18, 2009 at 7:53 pm   Posted in: Humor   Print This Post   No Comments

The Lead Brief in McDonald v. Chicago

posted by Gerard Magliocca

On Monday, the petitioners in the Second Amendment incorporation case filed their merits brief and asked the Court to overrule Slaughterhouse, United States v. Cruikshank, and Presser v. Illinois.  While I agree with their view that the Second Amendment should apply to the States and think the brief’s discussion of the Fourteenth Amendment’s original understanding is excellent, the case analysis is flawed.

As I explain in my forthcoming article, which should be out any day now, Slaughterhouse is not hostile to incorporation.  It only acquired that meaning in Maxwell v. Dow, a 1900 case that reread Slaughterhouse in light of recent political events (i.e., the defeat of William Jennings Bryan). Indeed, the brief just adopts Maxwell’s faulty claim that using the Privileges or Immunities Clause  for incorporation would require the overruling of Slaughterhouse and Cruikshank.  Cruikshank can be distinguished on state action grounds — it’s holding is not inconsistent with incorporation–and Presser is irrelevant as the Second Amendment claim there was not properly pled.  The real case that needs to be overruled (or modified) is Maxwell.

Finally, what does “overruling Slaughterhouse” mean exactly?  Would I now have a constitutional right to be a butcher?

  November 18, 2009 at 1:45 pm   Posted in: Constitutional Law   Print This Post   No Comments

Counterfactual Legal History

posted by Gerard Magliocca

About ten years ago a popular series of books called “What If?” — consisting of a series of essays by historians — came out that looked at key turning points in world or military history and tried to describe plausible counterfactuals.  I’ve often thought that asking that question about law would make for a fun conference.  Proposing the idea, though, points up a major difference between lawyers and historians.

Historians (except for the folks who participated in those books) are generally not fans of counterfactuals. In part, that is based on a methodological preference in favor of describing reality rather than speculating. But another reason is that historians tend to be very sensitive about the complexity of events and thus very skeptical about causal arguments of any sort.

Lawyers, by contrast, use counterfactuals all the time.  After all, “but for” causation or “harmless error” is asking a jury or court to figure out alternative paths for litigation.  In part, this is justified because we view causation as a more probable than not question.  A looser standard for causation leads to a greater willingness to think about what might have occurred if the facts were changed.

Once again, this raises the question of what a legal historian should do.  My own work is chock full of counterfactual experiments, which may explain why some historians might not like my scholarship. Straightforward legal history is important and worthwhile, but it seems to me that law (especially constitutional law) is more contingent than we generally think, and thus we need more work exploring lost paths.  There are some terrific examples — Risa Goluboff’s book on “The Lost History of Civil Rights” comes to mind — but that’s not enough.

  November 17, 2009 at 9:58 am   Posted in: Jurisprudence   Print This Post   6 Comments

A Legal Historian’s Dilemma

posted by Gerard Magliocca

This weekend I attended the Annual Meeting of the American Society of Legal History, which is always a great event.  The best line came from Jack Rakove, who said that the search for original understanding in constitutional law is increasingly an inquiry into what “Joe the Ploughman” thought in 1787 or 1791.

A legal historian (a role I play on a semi-regular basis) faces a problem that is common to folks who straddle different disciplines.  Unlike real historians, there is an expectation that legal historians should make their work relevant for current issues.  When I present papers or try to make them more marketable for law reviews, there is always a temptation — that I don’t always resist — to have a final section that tries to draw lessons from the history and apply them to current doctrine.  If you don’t do that, then lawyers will often ask, “What’s the point of this?”  If you do take this on, though, then those with a history training will say that you are doing law office history.  I’ve never come up with a great solution to this problem,

I’ll talk about a related issue — the use of counterfactual history — in a post tomorrow.

  November 16, 2009 at 1:43 pm   Posted in: Jurisprudence   Print This Post   One Comment

The Thirteenth Amendment and Hate Crimes

posted by Gerard Magliocca

A few weeks ago the President signed the Matthew Shepard Hate Crimes Prevention Act into law.  The Office of Legal Counsel issued an opinion concluding that the Act is constitutional under Section Two of the Thirteenth Amendment, relying heavily on the Second Circuit’s analysis in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002).

This could be a significant doctrinal development.  The OLC’s analysis, of course, was driven by concern about whether a federal hate crimes bill would be vulnerable under the Supreme Court’s holding in United States v. Morrison. There’s more going on here though. The Thirteenth Amendment, unlike the Fourteenth, does not have a state action requirement.  To the extent that lawyers start using the Thirteenth to sustain congressional action on racial discrimination, that would render Morrison a dead letter.  This line of thought was rejected in the Civil Rights Cases (over Justice Harlan’s dissent), but may be making a comeback.

  November 11, 2009 at 5:19 pm   Posted in: Constitutional Law   Print This Post   No Comments

Oral Argument in Bilski

posted by Gerard Magliocca

Here are some observations about the oral argument today in Bilski, which dealt with the scope of patentable subject matter and (potentially) the viability of business method and software patents.

1.  The Justices seemed to reject the argument that Section 101 should be read broadly since the novelty and nonobviousness requirements were sufficient to prevent things like “a method of speed dating” from being patented.  Counsel for Bilski kept responding to the Court’s hypotheticals by saying that the proposed processes could “potentially” be patentable if they met the other statutory requirements.  Nobody embraced that view.  I think this is a good sign, because in practice 102 and 103 haven’t worked well as gatekeepers.

2.  Unfortunately, the suggestions by the Justices about how to limit Section 101 were not well thought out. Declaring that 101 “excludes business methods” or includes only “technology” will just create a decade of uncertainty as people try to figure out what those categories mean.  What we need from the Court is a set of factors that can guide the analysis — my own views on that are here.

3.  The viability of State Street Bank is in doubt.  At least two Justices (Kennedy and Stevens) seemed unclear about whether State Street should survive, even though the Government took the position that the case was correctly decided.  I don’t think that the Court will take down software patents in this case, but I think the odds went from about 5% to about 20%.

  November 9, 2009 at 8:11 pm   Posted in: Intellectual Property   Print This Post   3 Comments

In Memoriam

posted by Gerard Magliocca

Mary Mitchell, a beloved member of the Indiana University — Indianapolis faculty, passed away today after a sudden illness.  Mary was a wonderful teacher who cared deeply about her students and fought passionately for her beliefs during her three decades at the law school.  We are all devastated by this loss.

  November 4, 2009 at 10:43 am   Posted in: Uncategorized   Print This Post   No Comments

AALS Hiring Conference

posted by Gerard Magliocca

I’ll be in DC (mostly in a hotel room) on Friday and Saturday as chair of IU-Indy’s hiring committee.  If any regular readers of CoOp will be at the conference, email me and perhaps we can find some time to meet up.

  November 3, 2009 at 5:15 pm   Posted in: Uncategorized   Print This Post   No Comments

The Return of Penal Colonies

posted by Gerard Magliocca

On Friday, attorneys for six of the Uighurs held in Guantanamo Bay announced that they have been transferred to live on the island of Palau.  (Pitcairn Island must have been unavailable). Perhaps all of the detainees who are the parties in Kiyemba (just taken on certiorari by the Supreme Court) will be resettled to render the case moot.

This ad-hoc way of dealing with the detainee issue strikes me as problematic.  In effect, it allows the Executive Branch unfettered discretion to establish penal colonies around the world and place curbs on the post-release activities of detainees without any due process whatsoever.  While I’m sure most of the detainees would prefer some freedom on some random island over prison, I think that Congress needs to take a look at this practice and consider establishing some guidelines.

  November 2, 2009 at 11:07 am   Posted in: Constitutional Law   Print This Post   One Comment

Health Care Reform in Political Time

posted by Gerard Magliocca

As the health care bill crawls towards the Senate floor, I’d like to paraphrase my favorite Simpsons episode and say that I look forward to an orderly debate that will eliminate the need for a violent bloodbath. See Kang v. Kodos (1996).

The health case issue is playing out along the lines that I sketched out in my work on generational conflict in constitutional law.  Each new movement eventually coalesces or or is identified  with a major statutory initiative (the repeal of the Judiciary Act of 1801, the Indian Removal Act of 1830, the National Recovery Act of 1933, the Civil Rights Act of 1964, the Reagan Tax Cuts of 1981). That transformative effort is almost always met by intense resistance from the political branches or from the Supreme Court (Worcester v. Georgia, Schechter Poultry, the filibuster of the 1964 Act).  This then leads both sides to engage in extraordinary procedural innovations to advance their agenda (judicial review, impeachment of Justices, Censure of the President, Court-packing).

Health care is now the signature measure of the Obama Administration.  While the fight against the bill is still ongoing, the town halls during August definitely raised the political temperature far above a typical piece of legislation.  (The length of the debate is another sign of this.)  Now I’m waiting for the unusual procedures to emerge.  Putting the bill through the Senate via reconciliation is the most likely candidate, but then again the innovation wouldn’t be extraordinary if I could easily predict what it will be.

  October 30, 2009 at 6:12 am   Posted in: Current Events   Print This Post   No Comments

Flagrant Age Discrimination at Indiana University

posted by Gerard Magliocca

I am not in the habit of criticizing my employer, but here goes.  Indiana University has a policy holding that the deans of individual schools on campus must retire at 65.  In the past, this policy was rarely enforced, but the current President — Michael McRobbie — has decided to enforce the policy strictly.  This mindless age discrimination now threatens to force out my dean (who is doing a fine job) despite assurances given when he was hired three years ago that he would not be subject to this age limit.

I think that a serious inquiry should be undertaken to determine whether President McRobbie and IU are in violation of the ADEA.  Even if that is not the case, I think the President’s behavior is shameful and sends a clear message to campus that senior faculty are not welcome.

  October 28, 2009 at 6:30 pm   Posted in: Employment Law   Print This Post   7 Comments

Summer Programs in China and Croatia

posted by Gerard Magliocca

I’m the co-director of the China Summer Law Program at Indiana University School of Law — Indianapolis, and I want to make a pitch to students who might be interested in China or in our other summer  program in Croatia.  The China course is held at Renmin University in Beijing and runs from the third week of May until the third week of June.  We offer an overview of Chinese law taught by the faculty that focuses mostly on commercial subjects but also covers criminal and public law.  Learning about a legal system that is still under construction is fascinating, as is living in China and interacting with Chinese law students.  The Croatia program is held in Dubrovnik (a sun-splashed city on the Adriatic) from late June until mid-July and concentrates on Central and Eastern European law.

The link to the information on the China program is here.  The Croatia link is here.  They are both exciting opportunities and I hope you’ll consider applying.

  October 27, 2009 at 8:56 am   Posted in: Uncategorized   Print This Post   No Comments

Native Americans and Equal Protection

posted by Gerard Magliocca

I want to flag this forthcoming article by Bethany Berger entitled “Reconciling Equal Protection and Federal Indian Law.”  This is one of the best efforts I’ve seen to take the original understanding of the Fourteenth Amendment seriously with respect to how Native Americans should be treated.  My own interest is how the Native American example should inform equal protection doctrine generally, which I think is a major blind spot in antidiscrimination law.  While this is not what Berger is talking about, her focus on the interaction of these concepts is well worth reading.  The Abstract follows the jump:

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  October 26, 2009 at 8:15 am   Posted in: Constitutional Law   Print This Post   No Comments

The Will of the People

posted by Gerard Magliocca

I recently read Barry Friedman’s book on judicial review, which I would definitely recommend for anyone who wants to learn about the evolution of the Supreme Court.  While the history that Barry covers is useful in and of itself (and I’ll need to grapple with some of his points as I revise my book), there are some larger themes that are worth discussing.

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  October 23, 2009 at 11:35 am   Posted in: Book Reviews   Print This Post   4 Comments

Qualified Immunity

posted by Gerard Magliocca

Students who are looking for paper topics sometimes ask me where I get my ideas.  The creative process is mysterious.  If I really knew how to be creative, I’d be an inventor or a scientist.  Nevertheless, there are some tendencies that I can identify.  First, ideas can develop organically from a prior project.  In other words, while working on something you come across something else interesting and get an idea.  Second, ideas can form in response to a specific event (a new case or statute) that gets you exercised.  Third, there may be something that bugs you or feels wrong.  Then you explore that topic and discover something new.

With respect to the last of these categories, I’ve long been troubled by the state of qualified immunity doctrine. This is a subject of enormous practical importance for anyone seeking to sue public officials for violations of civil rights or other injuries.  Most of the rules that govern these suits were made by judges in just the last 30 years and have almost no connection to historical practice or precedent in the sense that they give far greater deference to government wrongdoing than was true in the past.  Strangely enough, this does not seem to have aroused much sustained academic criticism (at least as far as I can find).  So now I’m poking around to see if I should write something about this.  Perhaps my hunch or feeling will turn out to be without foundation.  We’ll see.

  October 21, 2009 at 1:17 pm   Posted in: Tort Law   Print This Post   6 Comments

The Use of DNA Evidence in Criminal Cases

posted by Gerard Magliocca

I wanted to flag a terrific new paper on SSRN that will be coming out in NYU Law Review next year.  It’s by Andrea Roth (currently a fellow at Stanford Law School) and entitled “Safety in Numbers?  When DNA Alone is Enough to Convict.”  The Abstract follows the jump:

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  October 19, 2009 at 5:14 am   Posted in: Criminal Law, Evidence Law   Print This Post   2 Comments

Louis Brandeis

posted by Gerard Magliocca

I just finished Mel Urofsky’s new biography of Justice Brandeis and it’s terrific.  I must admit (sheepishly) that I had never focused on Brandeis and his career before.  The sweep of his achievements is truly astounding.  I was especially fascinated by the discussion of his career in practice, as the judicial part is more accessible through his opinions.

My only quibble (a minor one in a book hundreds of pages long) is that no explanation is given for why Brandeis joined Holmes’ opinion in Buck v. Bell.  Perhaps that is because no information exists on this point, but I would be curious to know whether Brandeis had any enthusiasm for eugenics or just went along because sterilization of the mentally retarded was an “experiment” in the states that deserved judicial deference.

BTW, I’m having Lasik tomorrow.  Thus, I’ll be offline (hopefully not for long) until I heal up.

  October 15, 2009 at 6:57 am   Posted in: Articles and Books   Print This Post   2 Comments

Constitutional Amendments that Failed in Congress

posted by Gerard Magliocca

As part of my research on the Child Labor Amendment, I’ve come across an interesting issue.  There is a strong assumption that constitutional amendments are hard to enact, in part, because you need a two-thirds vote in each House of Congress.  It turns out, though, that there are very few amendment proposals that have received a majority in each House but not two-thirds.  In other words, in practice, the rules that govern statutory enactments (including the filibuster) weed out almost all amendment proposals.

Think about it — in the last twenty-five years the only two contrary examples are the Balanced Budget Amendment and the Flag Burning Amendment.  Reaching back further, I don’t think there are many others (though I’d be interested if people know of some).  One wonders, then, why there is a belief that the two-thirds rule is the reason for the lack of amendments rather than robust political support (or norms) in favor of the text as is.

  October 14, 2009 at 4:02 pm   Posted in: Constitutional Law   Print This Post   5 Comments

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