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Author: Gerard Magliocca


Flu and Censorship

It is often said that a famine cannot occur in a country with a free press.  In other words, natural disasters become severe catastrophes only when corrective measures are not taken due to a lack of awareness.  This point was driven home during the recent swine flu outbreak, which was often compared to the dreaded 1918 influenza pandemic.

While people often condemn the modern media for sensationalizing issues such as swine flu, consider the alternative.  In John M. Barry’s excellent book on The Great Influenza, he points out that a major factor in the spread of the 1918 virus was wartime censorship.  Newspapers did not report on the virus until long after it was in the population, and when they did the information was scanty and unhelpful.  Likewise, public officials were slow to inform the public and were reluctant to admit that there was a problem.  Why?  Largely because people were worried about hurting wartime “morale” by talking about bad news.  Some of this involved official censorship and some involved a culture of conformity created by Woodrow Wilson’s Administration.  The result, one could say, was even more harmful to morale — hundreds of thousands of deaths.

While there are costs to media hype, muzzling the press directly or indirectly is usually more costly.


The Myth of John Marshall — Part Two

Yesterday I pointed out that many of Chief Justice Marshall’s opinions were not viewed as landmarks until long after they were decided.  So why do most constitutional scholars overlook this fact?

I think the answer is that the myth of John Marshall as a seer is a handy legal fiction for living constitutionalists and for originalists.  The former cite Marshall to justify the creation of the welfare state in the 1930s and the civil rights revolution of the 1960s.  Consequently, they do not need to do the hard work of explaining how the Constitution can legitimately change without an Article Five Amendment.  (Some people are trying to do this, of course, but it’s not orthodoxy.)

Originalists like the Marshall myth because they get to count his opinions as part of their canon. You rarely hear an originalist attack Marshall as a non-originalist, even though Madison accused him of just that (and with good reason).  Embracing Marshall as the source of broad federal power allows originalists to downplay the constitutional principles set forth in the 1890s, the 1930s, and the 1960s that they like but are inconsistent with the original understanding of the Constitution and did not involve constitutional amendments.

Legal fictions are fine in the sense that they enable lawyers to achieve necessary results without a theory to justify them.  But don’t kid yourself — Marshall’s importance is partly a fiction.


The Myth of John Marshall

One theme of the book that I’m working on about constitutional law during the Populist and Progressive period (1890-1910) is the way that Chief Justice Marshall’s landmark opinions were viewed at that time. I’m going to talk about this in two posts, as I think one would be too long.

So John Marshall is one of the greatest judges in our history, right?  Thus, his famous decisions have always commanded the respect of the legal community, right?  Well, not exactly.

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Article Five Petitions

In the wake of the “tea party” protests last month, several state legislatures are considering resolutions that invoke the Tenth Amendment and challenge the expansion of federal authority under the Obama Administration. As Randy Barnett correctly points out in a Wall Street Journal piece (dated April 23), this is little more than a symbolic gesture. He suggests instead that these states use their Article Five power to petition for a constitutional convention that might consider a federalism amendment.

I have a short piece on this issue that will come out this fall in Cardozo Law Review’s new online forum (De Novo). “State Calls for An Article Five Convention: Mobilization and Interpretation” ( talks about the history of these petition efforts and argues that this tactic is a useful one for reformers (liberal or conservative) even though it will almost certainly not lead to a new convention. Basically, the idea is that a large number of state legislative petitions puts political pressure on Congress, sends a constitutional signal to the Supreme Court, and is a useful way of mobilizing supporters in state races.


The Case for Sotomayor

I was not planning to say anything about the candidates to replace Justice Souter. Nevertheless, I feel compelled to do so after reading Jeffrey Rosen’s piece in the New Republic entitled “The Case Against Sotomayor.” (I’m sorry I can’t link to it here, but my home computer won’t allow me to do that for some reason.) Rosen’s negative characterization of the Judge, which is based on conversations with various unnamed lawyers, is inaccurate.

I have known the Judge for thirteen years. After my first year in law school, I was an intern in her chambers when she was a District Court judge. A few years after that, I was a clerk on the Second Circuit, where my judge sat with Judge Sotomayor on many panels and I observed oral arguments in which she was involved. And since then I have visited and spoken with her frequently on a range of issues. Thus, I feel like I have a special authority to talk about her qualifications.

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Drinking the Kool-Aid

Trademark law addresses two different interests. First, it protects consumers from being misled and reduces search costs by allowing firms to distinguish their goods on a consistent basis. Second, the doctrine secures the considerable investment that firms make in their brands by protecting them from competitors. The consumer interest is widely accepted as a goal, but the reputation one is not. Indeed, many scholars (and I include myself in that group) have criticized a trend in recent years whereby courts mouth the “consumer confusion” test of trademark infringement but reach well beyond that rationale to protect brands from other commercial uses. The same criticism applies to trademark dilution, which is attacked for creating a property right in gross for marks that is inappropriate.

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Foreign Law in U.S. Constitutional Interpretation

A litigant challenges a state statute as unconstitutional under the Due Process Clause. The Supreme Court rejects this claim in spite of powerful evidence that the statute is inconsistent with the original understanding of the Constitution. In part, they rest this conclusion on European law, which sanctions the state practice at issue and “informs” the meaning of due process. According to the Court:

“The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.”

So who wrote this internationalist claptrap? Justice Kennedy? Justice Breyer? Harold Koh?

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State Franchise Laws

Today I’m fielding last-minute questions from students about the exam, so I’ll be brief. On Monday, GM proposed its 438th restructuring plan. One sticking point is that GM has far too many dealerships given its future production (brands are being eliminated) and as compared to its competitors. The problem with cutting those excess dealerships, though, is that state franchise statutes make it very difficult for firms to close some dealerships rather than others within a state and gives dealers a cause of action for damages if they are closed wrongfully.

My question is this: Are these laws vulnerable to a Dormant Commerce Clause challenge? It seems like a plausible argument can be made that they place a substantial burden on interstate commerce, but I am unaware of any case law on the issue. I’d be interested to hear your thoughts.


George W. Bush

How should we think about George W. Bush’s Administration? This is a subject that I (perhaps foolishly) tackle in “George W. Bush in Political Time: The Janus Presidency” (, which comes out next month. In part, this is a review of superb books by Steven Skowronek and Keith Whittington, who categorize various presidents according to their relationship with the prevailing party system. After examining their framework, I try to apply that analysis to President Bush.

Consider two types of Presidents. The first inherits an existing coalition from a glorious predecessor. Examples include Harry Truman, George H.W. Bush, or Martin Van Buren. These are the “Stay The Course” leaders. Their interest is in stability, as radical change could threaten the winning formula for their party. A second type of president creates that dominant coalition. Examples here would be Andrew Jackson, Abraham Lincoln, Franklin D. Roosevelt, and (probably) Barack Obama. These are the “We Can’t Go Back” presidents. They are in the business of repudiating past practice and introducing sweeping changes that create a new set of stable first principles.

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