Author: Gerard Magliocca

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Thickening and the Obama Administration

The ongoing debate over the President’s legislative agenda (health care, climate change, labor union reform) poses an interesting test for the “thickening” hypothesis advanced by Stephen Skowronek.  His argument is that the growth of precedents, institutions, and interest groups over time makes it more difficult for Presidents — even ones that are elected by a large majority — to change fundamental governing principles.  One obvious example is that conducting the 1787 Constitutional Convention was far easier in the wake of the Revolution than it would be today.

Nevertheless, I am skeptical of this argument because there is no linear pattern in the achievements of the presidents who led party realignments.  Lincoln and FDR, for example, accomplished a lot more than Jefferson or Jackson, which runs against the grain of the thickening theory.  If Obama fails to get his agenda through Congress, though, that would be evidence in support of Skowronek’s idea, given that he carried in a large congressional majority and won 53% of the popular vote.  Or it might just suggest that it will take more than one convincing election victory for the Administration to overcome the doubts within its own party about the President’s ambitions.

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Michael Jackson and Privacy

113px-the_deathsvgThe news clips from Michael Jackson’s memorial give me a reason to mount one of my favorite hobbyhorses — the change in the way that we view public grief.   I defer to Dan Solove on all matters related to privacy, but this is a special case.

In April 1968, Robert F. Kennedy came to Indianapolis for a campaign stop.  On that day, Martin Luther King Jr. was assassinated.  The crowd gathered for RFK’s speech was unaware of this news, and he was the one who told them. There is a famous video of this speech that is audio only for RFK’s announcement of the death and the subsequent cries from the crowd.  The cameraman did not want to film people in their moment of grief, and thus did not open the lens until after the news had sunk in.

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Brother, Can You Spare a Dime?

As many of you know all too well, times are tough in the legal market.  Abovethelaw.com continues to track a steady stream of layoffs, salary reductions, and deferrals at major firms.  While this may be a temporary phenomenon caused by the severity of the Great Recession, some people are starting to ask deeper questions about what this might mean for the current model of legal education.

One possibility, of course, is that students who are thinking about law school will start wondering whether it’s a good investment. Incurring huge debts when there is doubt about the availability of jobs at the end of the rainbow is risky.  If there is a decline in law school applicants (or a shift to less expensive schools) that might put some institutions out of business.  Others suggest that the ABA should consider a two-year degree program to reduce costs, or should emphasize externships or apprenticeship relationships to help students get jobs after they graduate.

At a minimum, we should try to set a positive example of cost containment.  In this respect, I was disappointed to learn that the Maurer Law School of IU- Bloomington (which is the sister of my school) has received preliminary approval for a 24.5% tuition increase for in-state students.  This increase is curious because the Maurer School has received over $100 million in gifts during the past two years. You would think that some of this largesse could be used to help students out in these difficult times.

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The Irrelevance of Trademark Dilution

In 2006, Congress passed the Trademark Dilution Revision Act (TDRA).  This statute overruled the Supreme Court’s 2003 decision in Mosley v. Victoria’s Secret, which interpreted the 1996 Federal Trademark Dilution Act.  Specifically, the TDRA confirmed that: (1) tarnishment was a recognized cause of action under federal law; and (2) that the standard courts should apply in dilution cases was “a likelihood of dilution” rather than “actual dilution.”

What impact has the TDRA had so far?  The answer is none.  Barton Beebe (who in my opinion does the best doctrinal research in IP these days) wrote a piece not that long ago pointing out that there is no case that has found a violation of the TDRA without also finding trademark infringement.   The federal dilution remedy, in practice, is entirely superfluous.  A recent Westlaw search indicates that this is still the case, though I would be interested if anyone knows of a contrary case.

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Financial Innovation?

As Lawrence noted (if you scroll down), the President’s financial reform package is before Congress.65px-dollar_symbol_goldsvg Who knows what it will look like when it emerges from the legislative process, but there is an issue that I’d like to raise now.

The focus of the proposal appears to be on the regulation of exotic financial products rather than on their existence.  Maybe that is the right approach, but I wonder whether a more sweeping question should be asked.  Was the financial innovation of the last two decades a good thing?  There is an argument that we need a return to “bankers’ hours,” which was shorthand for the idea that financial products should be dull due to the tendency (described by Minsky) for the banking system to run off the rails.

I mention this because it may be a subtext (or actual text) of the Supreme Court’s consideration of Bilski.  Since financial instruments are a significant subset of “business method patents,” I can imagine some of the briefs making the argument that these incentives for innovation were actually pretty harmful.  When the Justices hear the case in the Fall, the atmospherics may not be so great for those who want a broad reading of patentable subject matter.

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Canonical Statutes

There’s been a lot of discussion recently about the idea that certain statutes (whether you call them canonical, super-statutes, or super-duper statutes) are now part of the Constitution.  This idea comes from the British Constitution, where certain statutes (The Reform Act of 1832, the 1911 Parliament Act) are considered fundamental and not subject to repeal even though formally they could be.

I tried to put together a list of what statutes might qualify for this exalted status.  Here’s what I came up with:

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The Great Recession

Consider some recent political events:

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1.  Civil unrest in Iran.

2.  The Honduran military arrests the country’s President and gives him a free trip out of the country.

3.  China (at least according to Friday’s Washington Post) launches a crackdown on human rights lawyers by letting their bar licenses “lapse.”

4.  Vietnam arrests a leading human rights lawyer and charges him with treason (last week)

5.  Thailand continues to face turmoil between supporters and opponents of ex-Prime Minister Thaksin (that started last fall with the airport shutdown, but it’s still going on).  

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The Six Stages of Scandal

The Sanford tango gives me an excuse to repeat this classic from Mickey Kaus, which works for almost any political scandal.

Stage 1:  That’s ridiculous.  It can’t possibly be true.

Stage 2:  It’s not true.

Stage 3:  You can’t prove it’s true.

Stage 4:  Why are you trying to prove it’s true?

Stage 5:  It’s disgusting that you proved it’s true.

Stage 6:  What’s the big deal anyway?

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Walter Bagehot

95px-walter_bagehotIt is ironic that one of the greatest books on constitutional law was written by a journalist.  Walter Bagehot’s The English Constitution is a classic study of British politics during the 1860s, but it is also worth reading for its general observations. Most people are familiar with Bagehot’s distinction between the “dignified” parts of a constitution, which give the government its legitimacy but are largely ceremonial, and the “efficient” parts that actually do the governing.  (Bagehot put the monarchy in one category and the Cabinet in the other.)  Few are aware of his commentary on our Constitution, which is full of gems that rival de Tocqueville’s analysis of American society.  

I’ve spent years trying to figure out what Bagehot’s analysis can tell us about contemporary constitutional law, and I think I’m finally getting close to some answers.  

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The Voting Rights Act

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The Court’s decision to avoid addressing the constitutionality of the Voting Rights Act is interesting for two reasons.  First, the opinion fits within the “generational cycle” that I discussed last week in the sense that the Justices usually tread carefully in the initial stages of a turnover from one constitutional order (the Reagan Revolution) to another (the Obama whatever you call it).  When Chief Justice Marshall first confronted Jacksonian Democracy in Cherokee Nation, the Court expressed its doubts about the legality of what was going on but dismissed the case for want of jurisdiction.  A year later, of course, the Court came up with something much stronger in Worcester v. Georgia.  During the 1890s, the Justices started their resistance to Populism with a statutory case (E.C. Knight) that avoided the constitutional issue under the Commerce Clause.  Not long after that, the Court got much more aggressive.  Thus, one cannot say that this decision (or the decision to allow the Chrysler sale to go ahead) means that the Justices will keep their powder dry for long.

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