Author: Gerard Magliocca


Some Supreme Court Trivia

The White House says that Judge Sotomayor has more experience on the federal bench than any Supreme Court nominee in the last one hundred years.  Does anyone know who the last nominee with more was?  (Holmes was on the Massachusetts Supreme Judicial Court for twenty years before TR picked him, but I guess they are referring to someone else.)


Sotomayor is the Choice

The AP is reporting the Judge Sotomayor is the choice to replace Justice Souter.  As readers of this blog might guess, I am thrilled by the news.  There will be plenty to say about this over the next few months.


The Child Labor Amendment

One of the most powerful trends in modern constitutional law is the decline of texualism.  I am not referring to judicial interpretation, although you can make a good case on that score.  I’m talking about the lack of interest in creating new constitutional commands through the Article Five process. Prior to the 1920s, it is fair to say that most people thought that major changes should be put into formal text. The Founding Fathers obviously believed that.  Reconstruction Republicans took that view.  And so did the Progressives of the 1910s.  But since then constitutional amendments have been about specific items (imposing a term limit on the President, giving some voting rights to the District of Columbia, repealing the poll tax in federal elections), while the general and powerful principles (like the right to privacy) are articulated by the courts.  What accounts for the growth of this unwritten constitution?

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Hiring for Tenure-Track

I wanted to mention that I’ll be the hiring chair at IU-Indianapolis for the 2009-2010 year.  We are looking to hire up to four people.  After the jump I’ll list the subjects that we’re looking for.  The comments section would be a good place for other hiring chairs to declare themselves!

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False Promises

p1010008Last weekend I was in Oak Park (outside Chicago) for the annual Frank Lloyd Wright house tour.  Few people rise to the level of genius in my eyes, but Wright is one who does. What he accomplished also raises an important issue in IP law that I’d like to talk about.

In 1990, Congress passed the Architectural Works Copyright Protection Act.  Before this, buildings were not copyrightable because they were functional.  This meant that anyone who took a picture of a building (like mine of Fallingwater) or produced an artistic work that used the image of a building exterior could do so freely.  The only exceptions were that: (1) building interiors are controlled by the property owner (based on trespass); and (2) there might be circumstances where an exterior could be a trademark.  Congress evidently concluded in 1990 that giving architects a copyright in their building exteriors was a good idea.

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Masterly Inactivity

500px-palace_of_westminster_london_-_feb_2007I want to start by thanking everyone here for inviting me to join on a full-time basis.  To celebrate this momentous occasion, I thought I should write about something profound.

So what is the best source of wisdom about politics?  Aristotle?  Leviathan by Hobbes?  The Federalist Papers? John Rawls?  Hayek’s Road to Serfdom?

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Conservatives vs. Liberals

Orin Kerr recently wrote a thoughtful post over on Volokh about what divides liberals from conservatives with respect to the role of judges.  He argued that in cases where the standard legal materials are pretty evenly balanced between competing arguments, liberals believe that judges should (and are entitled to) make their decision based on policy considerations.  Conservatives, on the other hand, take the view that the side with the stronger legal arguments should prevail.  This is an oversimplification of what Professor Kerr said, but I think it fairly states the gist of his analysis.

I have a slightly different take.  Basically, I would say that liberals embrace a common-law view of constitutional judging whereas conservatives take a civil law perspective.  Let me explain.

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Two-Handed Bowling and Patents

The Supreme Court is now considering a cert. petition in In Re Bilski, an en banc decision of the Federal Circuit that restricted the processes or business methods that can be patented.  These patents have generated enormous controversy in the past decade, as critics claim that they harm innovation by creating nuisance litigation and empowering patent trolls.  I have an article coming out this fall on this subject, entitled “Patenting the Curve Ball:  Business Methods and Industry Norms.”  The thesis of the article is that courts should say that processes are not patentable unless the relevant business community believes that the class of innovations at issue should be patentable.  

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Quarterbacks and Justices

In December, Malcolm Gladwell wrote a piece in The New Yorker about how difficult it is for NFL scouts to figure out which college quarterbacks will do well in the pros.  The success rate of these predictions is poor even though there is plenty of information available on draft prospects — game tape, interviews, physical tests, and so on.  Why is this the case?  Partly because the NFL is so much more challenging than college football.  And partly because the skills that make someone a great NFL quarterback are intangible and thus cannot be easily measured.  Few thought that Tom Brady would be a star when he was drafted. Everyone thought Matt Leinhart would be a star when he was drafted. How is that working out?

A similar dynamic applies to evaluating potential Supreme Court Justices.  One thing that I find astonishing about the debate on the candidates for Justice Souter’s seat is how sure some people are that they know who will be a “liberal Scalia” and who will not.  Indeed, much of the media coverage implies that the President’s choice comes down to picking a transformative nominee or “playing it safe” and taking someone who just fills some demographic slot.  This analysis rests on several false assumptions.

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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.