Author Archive for gerard-magliocca

James Wilson

posted by Gerard Magliocca

One question I’ve been asked is whether I’ll write another biography and, if so, about whom.  I’m not sure, but I do have some ground rules that are helpful for anyone considering this kind of project.

1.  Never write about a living person.

This is true for several reasons.  First, it’s a story without an ending.  Second, the person can do a lot to control or influence the book. Third, other people are far less likely to tell you the truth about the subject.  Fourth, lots of relevant documents will be unavailable.

2.  Don’t write about someone who is famous only as a judge.

Judges are generally boring people, though there is the occasional exception who has a colorful personal life (Justice William O. Douglas). If a judge had an lively political or professional career before going to the bench (Earl Warren, for example), then that can work, but a book that just moves from one opinion to another is tough sledding.

3.  Find someone about whom no book has been written in decades

If you want to make money, writing another book about Lincoln or Washington is fine.  To make a scholarly contribution, though, you need to say something new.  That can be done about an old subject because new documents or new insights come with every generation. Thus, the fact that a book was written about X fifty years ago does not preclude writing another book now.

4.  They have to be important enough (or fascinating enough) to justify a couple of years of your working life.

My leading candidate–and I’m starting to think hard about this–is James Wilson. Wilson was born in Scotland and emigrated to the United States in the 1760s. He wrote one of the first sophisticated pamphlets challenging parliamentary supremacy over the colonies, signed the Declaration of Independence, was one of the most influential members of the Constitutional Convention, and served as one the first Supreme Court Justices.  He is largely unknown because he died on the run from creditors after making a series of bad investments in land.  The last full biography of him was written in the 1950s, so this might be a good time to do one.  Plus, there’s always room for another Founding Father book.

  May 18, 2012 at 10:11 am   Posted in: History of Law   Print This Post   8 Comments

Jeffrey Toobin on Citizens United

posted by Gerard Magliocca

I want to add my bucket of cold water to the views expressed by Tom Goldstein, Ed Whelan, and others about Jeffrey Toobin’s analysis of Citizens United appearing in this week’s New Yorker.  There are some great behind-the-scenes facts in Toobin’s story, but his thesis doesn’t fit those facts. Instead of seeing the case as “How Chief Justice Roberts cleverly got the result that he wanted,” Toobin’s real headline is “Justice Kennedy steamrolled the Chief Justice.”

You wonder if something similar might happen in a certain case coming down next month.

  May 17, 2012 at 6:23 pm   Posted in: Supreme Court   Print This Post   2 Comments

What is Federalism?

posted by Gerard Magliocca

I’m going to start a series of posts on what I think will be my next article.  It’s entitled “Towards a Federal Constitutional Right to Local Government.”  (I’ve never written an article that starts with “towards,” but I think the law professor code requires me to at some point.)

The idea of this paper is that there is a large gap between the rhetoric and the reality of federalism.  The rhetoric is that state and local governments are equivalent.  This is also the federal constitutional rule.  Municipal and county governments are creatures of state law. If the state decides to abolish your town tomorrow, you have no substantive federal right to prevent that. This means that the only real protection for intrastate federalism in our system is public opinion (though some states guarantee municipal government protection in their state constitutions).

In reality, though, there is a substantial difference between state and local government.  Many people identify more strongly with their city than they do with their state.  And many of the issues that touch us most directly involve local decisions based on local taxes.  Fire protection, policing, schools, and sanitation, are regulated by state and federal law, but for the most part they are left to the discretion of local officials.  Moreover, there are strong expectations (such as where you buy a house) built around this autonomy.

My question is whether this distinction between form and function suggests that we should give federal constitutional recognition to a right of local government under the Tenth Amendment reserves the rights of the states and of the people. I first got interested in this problem when I was writing about Huey Long’s regime in Louisiana.  To eliminate opposition to his authority, Long eliminated towns with critical mayors or converted local patronage into state patronage. (Margaret Thatcher did the same thing when she didn’t like what the Mayor of London was saying about her.) Long’s centralization of power was challenged under state law, but there was no justiciable federal claim that could be made.  Now under the formal view of federalism, this is perfectly OK.  States have the right to structure their internal governance any way they want, and we should let them experiment.  But if you think that local government represents an important structural check on state government, then what Long did was definitely not OK.

One final thought.  All of the benefits of federalism apply with equal force within large and diverse states (California, New York, Texas, Illinois, Florida, and so on.)  In that context, though, we are content to say that political safeguards are sufficient to protect local interests.  At the federal level, though, we do not say that.  Courts play a modest, though notable, role in protecting state autonomy from federal intrusion.  What justifies this difference?

  May 17, 2012 at 11:20 am   Posted in: Constitutional Law   Print This Post   8 Comments

The Bingham Biography is Done

posted by Gerard Magliocca

Some of you will be thrilled to know that this means there will be no more posts about him.

  May 16, 2012 at 4:03 pm   Posted in: Uncategorized   Print This Post   11 Comments

John Bingham–The End is Near

posted by Gerard Magliocca

I’m now writing the Introduction, which I plan to post on SSRN if my publisher approves.

  May 15, 2012 at 9:50 am   Posted in: Uncategorized   Print This Post   No Comments

The NFL Lawsuit

posted by Gerard Magliocca

About a year-and-a-half ago, I wrote a post about how assumption-of-risk principles might apply to the claim that ex-NFL players were suffering from dementia and other chronic brain problems due to repeated blows to the head.  I didn’t realize at the time that we would see a lawsuit against the league along these lines so soon.  While extensive discovery is still ahead, there is a decent chance that the NFL will be found liable for not doing more to protect players.

One issue in the case is “What did the NFL know and when did they know it?”  If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain.  It is more likely, though, that this is not true.  What then?  Product liability suits with a long latency period (the time between exposure and symptoms) pose very tricky problems.  One way of viewing the issue is that it is unfair to hold a firm liable when the consensus was that the product was safe–how were they supposed to know better?  Another thought is that a firm that puts a product into the stream of commerce and injures people should always pay because they profited and to do otherwise would force an innocent victim to bear the loss. Complicating that is the extent to which the consumer is aware of a risk, though not THE risk, of the product.  Obviously football players knew that they could get seriously hurt.  But does it matter that they did not know that they could get hurt in the way that, say, Dave Duerson was?

This is actually not a bad topic for a symposium, but in the meantime what do you think?  (The prospective question of how you can make football safer is a separate issue.)

  May 15, 2012 at 9:32 am   Posted in: Tort Law   Print This Post   6 Comments

IP Chair Search

posted by Gerard Magliocca

I am pleased to announce that I will be heading up the search committee for the first endowed chair created by the gift of Robert H. McKinney to the (aptly named) Indiana University Robert H. McKinney School of Law.  This chair will be in Intellectual Property, and the chair will also serve as the Director of our Intellectual Property and Innovation Center.  We are looking for a tenured scholar with a distinguished record of teaching, research, and service.  Please forward a cv or any questions to me at gmaglioc@iupui.edu.

  May 14, 2012 at 11:20 am   Posted in: Law School (Hiring & Laterals)   Print This Post   No Comments

Renouncing Citizenship to Avoid Taxes

posted by Gerard Magliocca

There was news in recent days that one of the co-founders of Facebook (Eduardo Savarin) has renounced his U.S. citizenship to avoid paying a hefty tax bill (approximately $600 million) when the company goes public this week.  I’m ignorant of the law on this point, but are there really no restrictions on the right to relinquish citizenship on a date of your choosing?  If there are equitable limitations, this would seem like a good time to invoke them and say that he cannot opportunistically avoid taxes in this way. If there are no such limits, I wonder if the Government will consider exercising its discretion to deny him entry into the United States from now on.

  May 13, 2012 at 5:19 pm   Posted in: Tax   Print This Post   8 Comments

Happy Mother’s Day!

posted by Gerard Magliocca

My blogging break is done.  Good thing nothing happened while I was away. (Just kidding.)

Over the past few weeks, I read Robert Caro’s brilliant (and massive) four volumes on Lyndon Johnson. The fourth one, which covers 1958-1964, came out two weeks ago.  I did this for a few reasons.  First, I thought that this would help me as I revise the Bingham book. Working for three years a biography feels like a massive project to me, but consider that Caro has spent more than thirty-five years on LBJ!  Second, the portion on LBJ’s Senate career contains powerful insights on how Congress works. I’ve written about the Senate filibuster before, and now I’m thinking of moving to the committee structure and rules that relate to party discipline in both Houses.  More on that later this week.

Here’s a small point that I found interesting from a constitutional perspective. After Pearl Harbor, about eight members of Congress (including LBJ) enlisted in the Armed Forces without resigning their seats. In 1942, FDR ordered those members to return to politics, on the ground that their service there was more valuable.  Some complied, and others quit the House so that they could serve in battle.

My question is why does the President have the authority to tell members of Congress that they cannot serve in the active military?  Sure, he’s the Commander-in-Chief, but such an order would seem to intrude unduly on the prerogatives of members of another branch and of the voters who choose them.  It’s not a problem that’s likely to recur, but it’s puzzling.

 

 

 

 

  May 13, 2012 at 11:43 am   Posted in: Constitutional Law   Print This Post   13 Comments

Introducing Guest Blogger Frank Bowman

posted by Gerard Magliocca

I am pleased to welcome Professor Frank Bowman of the University of Missouri School of Law to the blog in May. Professor Bowman graduated from Harvard Law School in 1979 and was as a deputy district attorney, a prosecutor in the Criminal Division of the Justice Department, and the Deputy Chief of the Criminal Division in the Southern District of Florida.  He is one of the nation’s leading experts on sentencing, having served as Special Counsel to the United States Sentencing Commission and as the Academic Advisor to the Criminal Law Committee of the United States Judicial Conference.

Welcome Frank!

  April 28, 2012 at 2:30 pm   Posted in: Administrative Announcements   Print This Post   No Comments

Blogging Holiday

posted by Gerard Magliocca

I’ll be in New Zealand for the next three weeks, so no blogging until after I get back. I’ll be too busy trying to keep Gollum from stealing the precious.

I’m happy to add that the Bingham book (which is definitely not the precious) is now done, except for some clean up of the Introduction and Conclusion that I’ll take care of when I return.  In May I should be ready to circulate the draft to experts in the field for their feedback.

  April 16, 2012 at 2:16 pm   Posted in: Uncategorized   Print This Post   No Comments

The 100th Anniversary of the Titanic

posted by Gerard Magliocca

Naturally, on this day my thoughts turn to the litigation surrounding Titanic.  Among the leading examples are:

1.  Oceanic Steam Nav. Co. v. Mellor, 233 U.S. 718 (1914).  The Supreme Court, in an opinion by Justice Holmes, held that Limitation of Liability Act applied to tort claims brought in the United States against the vessel’s owner.

2.  R.M.S. Titanic, Inc. v. Abandoned and Wrecked Vessel, 435 F.3d 521 (4th Cir. 2006). This opinion rejected the application of the law of finds to objects recovered from the site.

3.  R.M.S. Titanic, Inc. v. Abandoned and Wrecked Vessel, 286 F.3d 194 (4th Cir. 2002).This opinion addressed the salvor’s attempt to sell certain artifacts from the site.

4.  R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir. 1999).  This opinion examined the salvor’s effort to claim exclusive rights to the site.

5.  Marex Titanic, Inc. v. The Wrecked and Abandoned Vessel, 2 F.3d 544 (4th Cir. 1993).  This one resolved a dispute between rival salvors.

  April 15, 2012 at 10:21 am   Posted in: Admiralty   Print This Post   One Comment

Violating the Twenty-Seventh Amendment

posted by Gerard Magliocca

In March 1873, Congress was about to adjourn and decided to vote itself a retroactive pay increase of $7,000.  This was an especially sweet deal for lame-duck members like John Bingham who did not have to face the wrath of the voters. Unfortunately for him, outrage at this “Salary Grab” led the next Congress to rescind the bonus.

I think this is the only time that the command of the Twenty-Seventh Amendment was violated (“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”).  Of course, that Amendment was not in force then, but is there another examples of a congressional pay hike that was contrary to this text?

  April 11, 2012 at 8:37 pm   Posted in: Constitutional Law   Print This Post   5 Comments

John Bingham on the State Action Doctrine

posted by Gerard Magliocca

I’ve now finished the portion of the book on Bingham’s congressional career. He got tangled up in two scandals during his last few months in office in 1873, which gives the story an interesting twist.

With respect to Bingham’s views on the Fourteenth Amendment, I’m trying to be cautious in drawing conclusions.  When he clearly and repeatedly said something about a given issue, though, then I feel confident in saying “His understanding was . . .”  In this vein, I think it’s obvious that he did not agree that there was a state action limitation on the Fourteenth Amendment.

Bingham supported the constitutionality of the Ku Klux Klan Act of 1871, which made it a federal crime for private persons to conspire to deny citizens their voting rights, right to sit on a jury, to hold office, or enjoy equal protection. In a long speech outlining his views, Bingham said several times with no equivocation that the Fourteenth Amendment empowered Congress to prevent “states or combinations of individuals” from violating the guarantees of Section One. Now I’ll concede that “combinations of individuals” could be distinguished from a single individual in defining congressional power, but in no way can you say that this meant only state action.

Anyway, now on to his tenure as Ambassador to Japan during the Meiji period.

  April 10, 2012 at 3:39 pm   Posted in: Constitutional Law   Print This Post   No Comments

Justice Fortas on Presidential Indictment

posted by Gerard Magliocca

A few weeks ago I wrote on post on Balkinization announcing that I’ve come into possession of a previously unknown draft article written by Justice Fortas during Watergate (after he was no longer on the Court).  I’m going to figure out how to deliver this to the institution that holds the Justice’s papers. In the meantime, though, one observation that caught my attention was this:

“A President is accountable for criminal acts, if he has committed them, like any other citizen. He may be removed from office.  He may be prosecuted after impeachment and removal from office; and, in theory, nothing in the Constitution itself would bar indictment and prosecution even while he is in office–unwise and infeasible as this may be in practice. There is no constitutional difference in this respect between a President or Vice-President, a federal judge or any other civil officer of the United States–despite assertions to the contrary.”

The question of whether a President can be prosecuted while in office, of course, is very controversial.

  April 6, 2012 at 11:31 am   Posted in: Constitutional Law   Print This Post   13 Comments

Bingham and the Catholic Church

posted by Gerard Magliocca

Like most Protestants during the nineteenth century, Bingham wasn’t crazy about the Pope.  In 1870, he denied the charge that he wanted to “persecute Rome on account of the peculiar religious notions” of the Vatican, which was an odd way of defending yourself against religious bias.  He said in the same speech that, in contrast to his belief in “free governments, free churches, free schools, free Bibles, and free men,” Catholic doctrine was “an attempt to fetter the freedom of conscience; it is an attempt to fetter the freedom of speech; it is an attempt to fetter the freedom of the press.” Despite his distaste for the Holy See, Bingham held that “religious belief, of whatever character, ought to be tolerated, that error itself ‘may be tolerated’ in the words of [Jefferson] ‘where reason is left free to combat it.’”

I guess this is my Easter message, though that wasn’t my intent when I started writing this post.

  April 4, 2012 at 9:57 pm   Posted in: Religion, Uncategorized   Print This Post   One Comment

John Bingham and Elizabeth Cady Stanton

posted by Gerard Magliocca

I came across this gem recently. When Bingham was on a campaign swing in 1871, he gave a speech about the Fourteenth Amendment to an audience that included Elizabeth Cady Stanton, the great feminist activist.  She praised his speech afterwards and asked him why what he said about equality did not apply to women.

Bingham’s response:  ”I am not the puppet of logic but the slave of practical politics.”

  April 3, 2012 at 4:35 pm   Posted in: Constitutional Law   Print This Post   2 Comments

Black Swan Alert

posted by Gerard Magliocca

This is a post that I wrote here in January 2010.  Still looks good.  Gerard

 

Jack Balkin has a post outlining his view that the individual health care mandate is constitutional.  He closes with this:

“I assume that as soon as the health reform bill is passed, people will challenge the individual mandate in court. I doubt these challenges will succeed. But stranger things have happened in constitutional law, and I’ve seen some of them in the past twenty-five years I have been teaching in this area. I will, however, say this: The Supreme Court would have to significantly alter its post-New Deal doctrines to strike this tax down. It could not just apply the law as it currently exists; it would have to change the law markedly. At present, I do not think the votes are there for such a constitutional revolution.”

The problem is that Balkin provides no explanation about why or when “stranger things happen” in constitutional law.  This sort of improbable event — a black swan — is treated as random.  That is simply wrong.  A central idea of my scholarship, both in my book about Jacksonian Democracy  (see the Amazon ad to the right) and my forthcoming book about Populism, is that these “preemptive opinions” follow a pattern. First, they are clustered around brief transition periods that follow a party realignment.  (In my view the 2008 election was such an event, though clearly that is a contestable assumption.)  Second, these cases share a distinctive signature.  Worcester v. Georgia, Dred Scott,Pollock, and Schechter Poultry are similar even though they are widely separated in time and dealt with very different questions.  (Indeed, as I said in a previous post, Pollock is the most relevant opinion for thinking about the health care mandate, both because of its political context and its discussion of direct taxes.  If you substitute “income taxes” for “individual mandate” in Balkin’s passage above, his comment is exactly what a constitutional expert would have said in 1895 about the challenge to the 1894 income tax.  How did that work out?)

Just to be clear, I am not saying that it is a certain that the Court will strike down the individual mandate. What I am saying that most scholars are looking at the wrong data set to make this prediction.  Instead of looking at all constitutional cases or all Commerce Clause cases, they should look at the smaller sample of cases at a generational inflection point that involve a major initiative of the new movement. When I look at that category, the odds of invalidation are more probable than not.

  March 31, 2012 at 1:22 pm   Posted in: Constitutional Law   Print This Post   3 Comments

Emergency Congress

posted by Gerard Magliocca

I have now reached the summer of 1869 in the Bingham book, which means that the end is in sight.  With Reconstruction largely in the rear-view mirror, I want to make an observation about what Congress did during this period.

When we think of emergency powers in any constitutional system, we almost always look at executive power.  A President in a security crisis, for example.  During the Panic of 2008, we saw an independent agency wield emergency powers (the Federal Reserve, helped along by the Treasury). Governors might also invoke extraordinary authority (say, in a natural disaster) and so on.

The Thirty-Ninth and Fortieth Congresses present a different model–emergency legislative power. (Another example is the English Convention of 1688 that governed after the abdication of James II.) Consider some of what Congress did between 1865 and 1868:

1.  Excluded the ex-Confederate States from the House and Senate.

2.  Imposed martial law on many of those states until they ratified the Fourteenth Amendment.

3.  Reduced the membership of the Supreme Court to seven members.

4.  Stripped the Court of jurisdiction to hear Ex Parte McCardle.

5.  Enacted the Second Reconstruction Act when seventeen states were not represented in Congress.

6.  Impeached the President.

7.  Removed the President’s authority to fire Cabinet members.

8.  Ruled that states could retract a no vote on ratifying the Fourteenth Amendment but not a yes vote.

The operation and justification of these “runaway parliaments” is a fruitful area for research–it gets virtually no attention as compared to the executive version.

  March 31, 2012 at 9:17 am   Posted in: Constitutional Law   Print This Post   4 Comments

Predictions on the Affordable Care Act

posted by Gerard Magliocca

If you would like to throw your hat into the ring and prognosticate what the Court will do, you can go to FantasySCOTUS and take a guess.

http://www.fantasyscotus.net/healthcare-case-predictions/

  March 31, 2012 at 8:48 am   Posted in: Supreme Court   Print This Post   No Comments

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