Author: Gerard Magliocca


The Takings Clause


One interesting feature of the Sotomayor hearing was the number of questions she was asked about Kelo.  I am not a property scholar (I find that blogging often requires me to qualify comments by saying “I’m not an expert on this”), but I find the policy debate over Kelo perplexing.  Let us assume that Kelo was right in holding that a constitutional “public use” if a state or local government takes property (say, somebody’s house) for a private development project such as a shopping mall.  Should state law be amended to bar that practice?

Well, the ongoing foreclosure crisis suggests that the answer is no.  There are many cities that  now have swaths of empty homes (including the house next to mine.)  And this is imposing significant costs on communities, including a loss of tax revenue, declining property values, and higher levels of crime.  If a private developer wants to use a block of these houses to build a commercial project, why should the use of eminent domain to facilitate that be prohibited?  Put another way, which is more problematic — the harm that results when people who live in homes are forced to move against their will (and might be cheated on the value of that property, as often happens when “just compensation” is awarded) or the harm that results from empty houses that just sit there when a transaction cost solution (i.e. eminent domain) would bring them back into productive use?


The Confirmation Hearings

I wanted to make two (well, maybe three) observations about the hearings for Judge Sotomayor. Contrary to some of the hand-wringing I’ve read about how these affairs are now a meaningless ritual, I think we learn quite a bit about what is on people’s minds with respect to constitutional doctrine.  For example, there were many questions about property rights (as others have noted), which is unusual as compared to prior hearings and suggests a heightened interest that might be reflected in the takings case that the Court will be hearing next term.

One thing that struck me was the consensus among the Senators about the incorporation of the Second Amendment.  Senators from both parties endorsed the idea.  Nobody rejected it.  That’s a pretty telling sign of where the political and legal culture is on that one.

The other point, which also came up in the Roberts and Alito hearings, involves the canonization of Justice Jackson’s concurring opinion in Youngstown.  Everyone, it seems, loves his analysis.  This raises an important question —  why did that happen?  There must be an interesting story there, and I’m going to start looking into that.


The Bork Nomination

94px-bork2Since the Sotomayor hearing today was pretty dull, I thought I’d revisit the Bork hearing. Specifically, I want to talk about the Oval Office Address that President Reagan gave in an attempt to save the nomination on October 14, 1987.  Presidents don’t often talk about their constitutional philosophy — perhaps the best modern example was FDR’s fireside chat in support of his “Court-packing” plan.  Reagan’s speech is pretty interesting though. Besides, I use RR’s radio commentaries from the 1970s as a model for my blog entries (in form they are similar), so why not talk about the man himself?

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The Citizenship Clause and Illegal Immigration

There is an article in today’s Los Angeles Times discussing a proposed ballot proposition that would deny various services to illegal immigrants and bar the issuance of birth certificates to children born here of illegal immigrant parents.  Advocates of the proposition state that they want to use this as a vehicle to force the Supreme Court to address the issue of whether such children are citizens under Section One of the Fourteenth Amendment.  This could also force a reconsideration of the Court’s decision in Plyler v. Doe, which held that denying public education to illegal immigrant children who were not citizens violated the Equal Protection Clause.

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Patent Disclosure

There are three good ways to impress professors.  First, ask them for advice — we live for that.  Second, tell them that you really liked an article they wrote — that goes a long way.  Third, write a really good article about a topic that they were thinking about — they’ll think you’re very wise.

The last point applies to Jeanne Fromer’s article on “Patent Disclosure” in 94 Iowa. L. Rev. 539 (2009). Fromer emphasizes the importance of disclosure to innovation and then points out that the current patent system does a poor job in that respect.  This is so because patents are not designed to convey technical information clearly, are not indexed in a way that makes them easy to search, and cannot be easily challenged if they fail to disclose adequately.  Equally, if not more important, is the fact that the treble-damages remedy for willful infringement discourages folks from reading patents in the first place. Fromer offers suggestions for improvements in all of these areas, and I recommend that you read the piece if you find the subject matter of interest.


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.


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. 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.


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.