Author: Gerard Magliocca


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.


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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