Author: Gerard Magliocca

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The Generational Cycle — Part Two

Yesterday I talked about the theory that is the foundation of my two books.  The basic idea is that constitutional law follows a generational pattern that unfolds in a similar way about every thirty years.  (As a side note — the pattern holds pretty well for British politics and can even be applied to what’s going on Iran (thirty years between the fall of the Shah and now), although in a dictatorship there are obviously powerful means available to crush dissent.)

The key inflection point in this cycle is when one generation supplants another.  As scholars from Robert Dahl to Keith Whittington have said, these transitional periods typically see the greatest friction between the political branches and the Court.  Why?  Because the Court is still controlled by what Justice Robert H. Jackson once called the “rejected regime.”  Thus, the Justices are likely to challenge the initiatives and assumptions of the new political leadership.

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The Generational Cycle

With President Obama’s nomination of Judge Sotomayor and the close of the Supreme Court’s term coming soon, this is a good time to assess where we are from a broader constitutional perspective.  I’ll divide this analysis into two posts, as I think one might be too long.

Two years ago, I wrote a book called Andrew Jackson and the Constitution:  The Rise and Fall of Generational Regimes, which argued that constitutional change is partly driven by a “generational cycle.” The idea is that every thirty years or so there is a realignment of the party system that ushers in major constitutional reform.  Moreover, the way in which this change occurs follows a similar pattern for each generation.   The Obama Administration marks the most recent turn of this cycle, and there is a lot that this theory can tell us about where things are heading.

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The Pirate Party

I noted with interest that120px-skull_and_crossbonessvg1 the Swedish Pirate Party won a seat in the European Parliament last week.  I’d never heard of them, but found to my surprise that they are the third largest party in Sweden.  Moreover, many other countries, including the United States, now have a Pirate Party.  So what do the pirates stand for?

While I won’t list the whole platform (it varies from country to country), the Pirate Party clearly supports a radical reduction in intellectual property rights.  The U.S. version calls for the repeal of the Digital Millennium Copyright Act, the end of digital rights management, support for file sharing, and a return to a 14 year term for copyrights as provided in the 1790 Copyright Act. 

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Law vs. Culture in Intellectual Property

On Friday and Saturday I’ll be at a conference at GW Law School on “Patents and Entrepreneurship in Business and Information Technologies.”  As I prelude to my talk there (about Bilski), I thought I’d write about an aspect of innovation policy that probably deserves more attention.

When people think about how to improve public education, the debate tends to break down along the lines of “money” vs. “values.”  In other words. some people say that the problem with schools is that we don’t spend enough money on them or that the money that is spent is unequally distributed.  The other view is children don’t work hard enough, parents are not involved in their children’s lives, or society emphasizes other values at the expense of education.  Both of these criticisms have merit, and you cannot get successful education reform without responding to both.

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Elected Judges

While83px-henry_clay I’m tempted to talk about the stay of the Chrysler bankruptcy sale, let’s stick with the Court’s opinion (issued yesterday) in Caperton.  This case on elected judges, due process, and campaign contributions is well worth reading, especially given Chief Justice Roberts’ dissent and its “Forty Questions” for the majority.

An elected judiciary is one of the most important (and unique) institutions in American law, but it gets almost no scholarly attention.  (Jed Shugerman at Harvard and Renee Lerner at GW are trying to rectify that with some terrific work).  In 1841, Henry Clay (on the right) asked the Supreme Court to disregard a decision from Mississippi that was being appealed because the state had an elected judiciary (it was the only state with elected judges at all levels.)

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“Yes, Minister” on Government Failure

450px-big_ben-150x1501Courtesy of Sir Humphrey Appleby, here are the five standard excuses for mistakes in public policy.

1.  The Antony Blunt Excuse

“There is a perfectly satisfactory explanation for everything, but security forbids its disclosure.”

2.  The Education Excuse

“It’s only gone wrong because of heavy cuts in staff and budget which have stretched supervisory resources beyond the limits.”

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Is California Too Big To Fail?

120px-flag_of_californiasvgCalifornia is in the midst of another budget meltdown.  Many say that the problem is a structural one and can be corrected only by a constitutional overhaul of the supermajority rule for passing budgets and through limitations on the use of ballot propositions to dictate taxes and spending.  There is a movement to call a constitutional convention in the State, but as I don’t live there, I’m not really in a position to comment one way or the other.

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Twenty Years Later

800px-tiananmen_square_visitThis is the twentieth anniversary of the Tiananmen Square Massacre.  As the Co-Director of IU-Indy’s China Summer Program, I’ve spent quite a bit of time in China over the last seven years.  I am not a China expert, but I do know more about legal reform there than the average bear. So I thought I would try to provide some perspective on where things stand.

It is fair to say that individual freedom has increased for the average citizen so long as they are:  (1) Han Chinese; (2) not that religious; (3) not interested in joining the Falun Gong or any other civil organization that rivals the Communist Party; and (4) not a lawyer bringing cases against state action.  

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Nobody’s Perfect

508px-silhouette_gunsvgYesterday the Seventh Circuit — in a decision handed down just one week after oral argument — held that the Fourteenth Amendment does not incorporate the Second Amendment against the States. The opinion by Judge Easterbrook (joined by Judge Posner) reasoned that Supreme Court precedent from the nineteenth century was dispositive.  Despite the Ninth Circuit’s recent holding to the contrary, I think the Seventh Circuit has the better of the argument as to what an appellate court should do given the prior Supreme Court dicta on the subject. 

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A New Federal Bailout

I wrote this for some friends during the original congressional hearings on GM in November.  Given the news of today, I figured it was worth a rerunsanta_claus_icon:

 

AP:  Washington, DC. — Santa Claus was greeted with deep skepticism on Capitol Hill this afternoon as he told members of Congress that he could not fund operations for the remainder of the year without federal assistance.

“Global warming created a real estate bubble in the North Pole that has burst,” Santa explained. “Now my elves are under water and under water on their houses too.” Aggressive cost-cutting steps, such as selling reindeer and reducing mall appearances, have failed to stem the tide of red ink.

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