Author: Gerard Magliocca


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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Copyright Limits

About five years ago, I wrote an article that said, in part, that the increasing length of copyright terms would spur the development of new doctrinal proposals that would impose limits on the scope of that extended right. One example was Lawrence Lessig’s view, which was rejected by the Court in Eldred, that the Constitution barred Congress from increasing the term of an existing copyright (as opposed to a prospective extension). Other possibilities that I discussed involved borrowing some limits from trademark law, such as imposing a “commercial use” requirement or a robust “abandonment” rule.

In the most recent issue of the Harvard Law Review, Shyamkrishna Balganesh proposes another reform along these lines — the idea that copyright protection should be limited to uses that were reasonably foreseeable at the time that the work was created. Basically (though I’m oversimplifying here), the idea is that an author would not have control over the use or distribution of a work when the medium at issue was unknown at the point of creation. This would mean, for example, that someone who wrote a book decades ago could not prohibit Google from created its global commons because the Internet was not foreseeable in say, 1950.

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A Logic Puzzle

Several conclusions can be drawn from the following comparison. Which one do you take away?

1. In Grutter v. Bollinger, the Supreme Court described the admissions goals of the University of Michigan Law School (and law schools more generally) this way: “Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that that attaining a diverse student body is at the heart of the Law School’s educational mission . . . [T]he Law School’s admissions policy promotes ‘cross-racial understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races.’ These benefits are ‘important and laudable,’ because ‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’ . . . Numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’

2. . Consideration of diversity in the U.S. News and World Report Rankings: None


Has the Fourth Amendment Jumped the Shark?

One advantage of blogging is that I get to pose questions that have always bugged me. In light of the Supreme Court’s activity this week, in which they handed down Arizona v. Gant (a case on warrantless car searches), and heard argument in Safford United School District v. Redding (a case about the strip-search of a teenage student), here’s my question — why does the Court take so many Fourth Amendment cases?

Now I am not a Fourth Amendment scholar, so perhaps this just reflects a certain envy that the Justices don’t take the cases that I’m interested in more often. But it’s always struck me that most of the Fourth Amendment cases where certiorari is granted are pretty fact-intensive. Ordinarily, you wouldn’t think they would be good candidates for Supreme Court attention, even in the presence of a circuit split.

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The Forgotten Man

A book that is getting a lot of attention these days is “The Forgotten Man: A New History of the Great Depression” by Amity Shlaes. Shlaes argues that FDR’s policies prolonged the economic downtown (or at least did not help). Now that we are in another severe recession, her book is being invoked by those who oppose to President Obama’s interventionist measures (such as economic stimulus) as evidence that the New Deal was a failure.

Let’s assume for purposes of discussion that Shlaes is right about the economics. Is that the end of the matter? I don’t think so. The next question is whether activist government was necessary to prevent something worse from happening. I’m not talking about a dictatorship. I’m simply referring to a political movement in favor of even more interventionist or redistributive policies that would have gained traction because the government was not doing enough.

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Pirate Democracy

I just finished a fun book that I want to recommend. It’s “The Invisible Hook: The Hidden Economics of Pirates” by Peter T. Leeson. The author explores the Golden Age of Piracy (circa 1720) and shows how pirates overcame collective action problems. While there are many parts that are of interest to lawyers (for example, the pirate use of trademarks — the Jolly Roger — and crude advertising to enhance their brand of terror and encourage capitulation), the issue that I want to focus on is pirate governance.

Leeson points out that pirates needed to create a legitimate authority amongst themselves because the cost of having unhappy crew members was high. Even one disgruntled pirate could desert and expose the ship to the authorities. (And the penalty for piracy was death). So how did pirate gangs handle this?

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Impeachment Proceedings

Here’s a prediction. The fallout from the release of the OLC Memos will be an impeachment inquiry into Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, who signed the 2002 memo authorizing waterboarding and other enhanced interrogation techniques. I am not advocating Judge Bybee’s impeachment. I am merely saying that this where the political train is heading.

Put bluntly, there is no appetite in Washington to prosecute those involved in alleged torture. Every word and gesture from the President indicates that he’d like the problem to go away and leave him alone. Moreover, there is understandable unease about setting a precedent whereby officials from one Administration throw members of the prior one (of a different party) in jail over an issue that is partly based on policy disagreements. On the other hand, a decision not to prosecute those who formulated the interrogation regime leaves them unaccountable for their actions. What is the solution?

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The OLC Memos

I take up this topic with some hesitation because, to be honest, I would rather talk about something less depressing. Furthermore, I am not sure that I have anything to add to what has already been said about our treatment of high-level detainees (take a look at Sonja’s post below, for example). Nevertheless, I feel compelled to say something following the release of these memos. Putting aside the policy aspects of what was under consideration (if that is possible), three things stand out to me.

First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: (1) torture requires the infliction of severe pain or suffering; (2) when our trainees were subjected to these techniques they did not suffer severe pain or suffering; therefore (3) using this techniques on detainees is not torture. The problem is that point #3 does not follow from #2. As the first Bradbury memo concedes, our troops know that they are just undergoing training and will not be harmed when the techniques are applied to them. The detainees have no such assurance. This is a pretty important distinction, but even after this concession the memos continued to use our training experience to evaluate the severity of the interrogation techniques.

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