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Author: Gerard Magliocca


Plagiarism in Legal Briefs

I was having a conversation with a colleague the other day about the fact that there does not seem to be a clear set of norms about copying from another attorney’s brief.  Suppose I were working on a case and I read a brief that made a particular point really well.  If I cited that brief in an attempt to fairly attribute the source when I made the same point, then I’d look like an uncreative doofus.  If I did not cite the brief, though, then that would (or could) be plagiarism.  Granted, another brief is not authoritative, but a cite could be required for respect rather than for authority.

It seems, though, that lawyers don’t care whether people plagiarize their briefs.  Part of that may be because plagiarism is hard to detect and does not matter for the case where the argument was first made.  (Indeed,  attorneys are thrilled when the judge in their case plagiarizes their brief in writing the opinion.)  Or maybe people are flattered that others would copy their work.  I’m not sure why attorneys have such a laid back view of plagiarism in briefs.  Thoughts?



I learned recently that once sainthood is conferred by the Catholic Church that status cannot be revoked.  Not so for Supreme Court opinions or canonical legal texts.  A great deal has been written about how authorities are canonized, but not much is written about the opposite–how are they delegitimized?  I haven’t thought this through fully, but here are some tentative ideas:

1.  ”Ignoring.”  If a certain text or opinion stops getting attention, then its authority diminishes.  Consider in this context Bowers v. Hardwick, which was totally ignored by the Court’s opinion in Romer.  That was the way station for overruling Bowers in Lawrence v. Texas.

2.  ”Yesterday’s News.”  Age can confer or detract from authority depending on how you frame the argument, but a precedent can be dispatched by just labeling it as old or obsolete.  To some extent this is what happened to the Warren Court cases on the Voting Rights Act in Shelby County.

3.  ”Too Brief.”  Courts often attack precedent by saying that a prior court did not say much about an issue.  As if to say that the prior court wasn’t paying close attention, which may be true, but may also reflect the fact that at the time the issue wasn’t considered close.  Chief Justice Roberts did this last week in McCutcheon by rejecting contrary language in Buckley v. Valeo as “just three sentences.”

4.  Say that the precedent was wrong from the day it was decided.  This has been done many times.

I would have to look at more examples where precedents were overruled to get a better sense of this.



Corporate Leadership and Politics

Recently there was a brouhaha over the hiring (and then firing) of Brendan Eich, the CEO of Mozilla.  In 2008, Eich gave a personal contribution to the campaign for Proposition 8, the California constitutional amendment banning same-sex marriage.  Same-sex marriage supporters responded to Eich’s hiring with criticism and threats of a boycott before the company essentially rescinded the offer.

While you can look at this case as an example of free speech or intolerance (or both–there is plenty of intolerant free speech), I want to suggest that this sort of thing is an unintended consequence of Citizens United.  In a world where corporations can give large sums to political campaigns, the political views of a company’s CEO are highly relevant.  Suppose the new head of Microsoft was a fervent supporter of [some cause or candidate] and decided to back [some cause or candidate] with $1 billion from the company’s cash hoard.  People on the other side of that issue would have every reason to organize against that person as the CEO.  Now it is unlikely that a publicly-traded company would pick a political activist as its leader, and the Board of Directors (not to mention shareholders) would probably take a dim view of such large political contributions. But I can understand where the concern would come from.

I am not saying that this is why Eich was raked over the coals.  In his case, people were attacking him for his past behavior, not for what he might do in the future.  But they could have been worried about the future.




Woodrow Wilson and Justice McReynolds

98px-President_Woodrow_Wilson_portrait_December_2_1912I’m starting to go through Justice McReynolds’ papers, and one thing that I would like to figure out is how he got on the Court.

The most common story of McReynolds’ appointment goes like this.  He was a jerk as Attorney General, so when a Supreme Court vacancy opened up Woodrow Wilson took that opportunity to get rid of him.  This does not strike me as a plausible explanation.  Even if you took Supreme Court appointments lightly, which I don’t think Wilson did, I doubt that you would hand this plum to someone you could not stand.  What are the other possibilities?

1.  McReynolds, as I mentioned in a prior post, had a fine reputation as a trust buster in 1914.  This may have convinced Wilson that he was a progressive (or progressive enough).  I’m less clear on whether McReynolds was a good Attorney General–I still need to work through that.

2. The vacancy to which McReynolds was appointed was a southern seat (Horace Lurton, a Kentuckian, died).  As a result, the fact that McReynolds was from Tennessee gave him a leg up.

3.  Wilson’s wife died a few weeks before McReynolds was nominated.  Some suggest that (in his grief) Wilson simply was not thinking clearly about the nomination or any public matter at that time.

Anyway, I’m curious to see what the press had to say about the McReynolds nomination.


MPSA Annual Conference

I wanted to note briefly that I’m sorry I was unable to present at the Midwestern Political Science Association last week. I was scheduled to talk about Bingham on a Reconstruction panel, but my wife and I recently had a baby, and I had to cancel my talk as a result. If you see me around here less often in the coming months, that’s the reason.


The Civil Rights Act of 1964

I just finished reading Clay Risen’s terrific book on the debate that culminated in the enactment of what he calls “The Bill of the Century.”  Here are some things that I learned:

1.  ”Judge” Howard Smith, the segregationist chairman of the House Rules Committee, famously amended the Act to include “sex.”  I’ve always understood that this was a poison pill that failed to derail the bill.  It turns out, though, that Smith was a strong advocate for (white) women’s rights throughout his career.  So he may have been sincere (or at least have had mixed motives).

2.  Much of the debate early on centered on whether the Act should rely on the Commerce Clause or on Section Five of the Fourteenth Amendment.  The Commerce Clause was chosen for a couple of reasons, but one factor that I had not considered was that the Fourteenth Amendment was seen as a “Republican” way of handling the problem whereas the Commerce Clause was seen as the “Democratic” way.  That just shows how far we’ve come in the last fifty years.  Nobody today thinks of the Fourteenth Amendment in partisan terms.

3.  The book argues that LBJ gets too much credit for the passage of the Act, and that many other people (Hubert Humphrey, Mike Mansfield, Nick Katzenbach, Everett Dirksen) did more.  I think this assessment is correct, though I’m much more skeptical of the book’s implication that JFK would have gotten the Act passed had he not been killed.  Partly I suppose that’s because I’m not a JFK fan (for one thing, he gave us Justice Byron White, one of the worst modern Justices on a par with Blackmun and Burger.)



The Constitutional Convention Countdown

Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesLast week the Michigan Legislature voted to call for a constitutional convention under Article V to propose a Balanced Budget Amendment.  This means that 34 states have now issued such a call.  Or maybe it’s less than that.  Let me explain.

The problem is that some states have repealed their prior calls for a Balanced Budget Amendment.  Thirty-four is the right count only if none of those repeals are valid.  But are they valid?  I think it’s up to Congress.  Coleman v. Miller held that Congress gets to decide whether a state has ratified an Article Five Amendment.  During Reconstruction, Congress counted some states as “yes” votes for the Fourteenth Amendment (e.g., Ohio) even though they had repealed their ratification. Coleman concluded from this precedent that the question of state ratification was a political question.  The same logic applies, in my view, as to whether a state has asked for a constitutional convention.

Giving Congress discretion over this question, of course, does not answer the question of whether a state repeal is valid.  There are good reasons to think that a state should be able to issue a repeal of a convention summons.  Insisting on the opposite view would mean that one legislature could bind all of its successors, which is generally a no-no in Anglo-American law. On the other hand, the Fourteenth Amendment precedent takes the opposite stance–those repeals were not allowed.  It’s fair to say, though, that Congress will probably bend over backwards (as long as Democrats control the Senate anyway) to find a way to not count in enough states for a constitutional convention.


Research Help at the Minnesota Historical Society

I want to thank everyone at UVA who responded to my post asking for help in looking at Justice McReynolds’ papers.  Now I have a similar request for any student in Minneapolis.  Justice Butler’s papers (though there are not many) are held by the Minnesota Historical Society.  I would like someone to look at the collection, give me a sense of what’s there, and photograph some or all of the documents.  If anyone is interested, then please email me at


Business Method Patents Are In Trouble

The transcript of the oral argument in CLS Bank v. Alice Corp. is now available.  My takeaway is that the Court may revisit its statement in Bilski that business methods are patentable.  Justice Ginsburg said twice that four Justices (including herself) had signed Justice Stevens’ concurrence in Bilski that took issue with the Court’s position, and did so in a way that sounded like she wanted a do-over.  More significant, Justice Kennedy (who wrote Bilski) kept pressing for an example of a valid business method patent and seemed unsatisfied with the answers.

Holding that business methods are unpatentable would be better than the alternatives of doing nothing (i.e., invalidating this patent on the narrow ground that is comparable to the patent invalidated in Bilski), getting rid of all software patents (nobody seemed interested in that), or coming up with a test for abstract ideas that could actually work (an almost impossible task).  And getting rid of business method patents would go a long way towards solving the problems posed by patent trolls.

Of course, this is what I thought the Court would do in Bilski.  We’ll see if there are five votes this time.

UPDATE:  After reading the transcript again, I’m less optimistic that the Court will do anything significant.  Maybe the only thing they can get five votes for is a judgment that this patent is no more concrete than the one in Bilski.