Saving the Environment

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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12 Responses

  1. Jon Roland says:

    Law schools could help the planet most by turning out devoted constitutionalists who would help bring this and other countries back to strict constitutional compliance, according to the understanding of the founders. The solutions to most of our problems require some participation by government, but the effectiveness of government depends entirely on strict constitutional compliance. Otherwise, it is only special interests jockeying for power and losing the respect of the people that is needed for any governmental action to succeed.

  2. Daniel Solove says:

    I had a related idea a while back — law schools could create a joint blog where they would post about all the things they would include in the brochures. This blog could be a central clearinghouse for all the information, and anybody interested in what various law schools are doing could check the blog from time to time.

  3. F. Cohen says:

    Hahaha Jon Roland’s post is so over the top that it makes me hope he’s just being ironic.

    What were the founding father’s opinions on telecommunications and the first amendment? How about on on commercial airlines, Islamist terrorism, and the fourth amendment? How did the founders understand those situations?

    Or should we just make-up analogies on how “WE THINK” the founders would have thought? That sounds a lot like we’re inserting our own opinions into Constitutional interpretation. A little too judicial activist for your tast Mr. Roland, no?

  4. Jon Roland says:

    In response to F. Cohen, my post was serious but not hopeful. As for his questions:

    Telecommunications are “press”. Congress shall make no law. Information is not “commerce”. As for allocating broadcast bandwidth, that would require an amendment and I might support a carefully worded one, as I do in my Draft Amendments at

    It also makes sense for the federal government to regulate aviation, but, again, it would require an amendment unless all the states ceded jurisdiction to their airspaces making airspace, say, 1000 ft. above terrain, to be a federal enclave under Art. I Sec. 8 Cl. 17.

    Terrorists are pirates, that is, foreign nonstate actors who commit warlike acts. The Constitution provides for them.

    The Fourth Amendment confronts us with having to elaborate on what constitute private zones and their boundaries, but that was also confronted by the Founders and understood by them.

    It is possible to get to know the thinking of the Founders well enough to make reasonable guesses as to what they would have thought about modern situations, but if there is any doubt, Art. V provides the remedy.

  5. Jon Roland says:

    Forgot to add to the definition of “pirate” that it also includes domestic nonstate actors who commit warlike acts against foreign parties. Thus, a president to goes to war without a declaration of war or letters of marque and reprisal is a pirate, as are all those who follow his orders.

  6. speedplane says:

    Mr. Roland has all the marks of a troll so no substantive response is necessary. But I do find it amusing that among his suggested constitutional amendments, one is to make violating the constitution “a capitol [sic] offense”.

  7. Speedplane, disagreement with Roland’s views doesn’t make him a troll; he seems perfectly sincere.

    And Daniel, the great part about a centralized blog for this news is that we could save storage space on the server with no loss of information by just replacing the “Post” button with /dev/null.

  8. speedplane says:

    James – I suppose you’re right… after checking out Roland’s website I can see that he is fully invested in his loony notion of constitutional law.

  9. Rod Sullivan says:

    No thinking person believes that the 10th Amendment is a mere \”trueism\” and that it is surplus language. No thinking person believes that all trivial acts which only substantially affect interstate commerce when aggregated with other trivial acts, subject those acts to Congressional regulation under the Commerce Clause.

    Thinking persons can take the position that stare decisis requires that we not change 60 years of Commerce Clause jurisprudence (Thomas\’ position, perhaps). Other thinking persons may say \”we took this power because we wanted it, and we\’re not giving it back without a fight\” (Souter). Other might think \”we have the right to ignore the 10th Amendment because times have changed (O\’Connor and Kennedy).

    However, let\’s not delude ourselves into thinking that the current state of affairs is anything the Founding Fathers would approve of.

    Regarding your questions:

    Telecommunications and the first amendment:

    The Founding Fathers would likely find that providing telecommunication services was interstate commerce which could be regulated by Congress.

    However, they would likely feel that the content of the telecommunications were protected by the First Amendment, or a general liberty right under the 14th.

    Commercial airlines:

    The Founding Fathers would likely find that transportation of passengers across state lines by air was interstate commerce which could be regulated by Congress.

    Islamic terrorism and the fourth amendment:

    The Founding Fathers would likely find that defense against Islamic terrorism was a matter of national defense, that enemy combatants, like Southerners during Reconstruction, and many Loyalists during the Revolution, could be tried by military tribunal, but that the writ of habeas corpus could not be suspended.

  10. When this was first posted, I had gotten two of these pieces. In the intervening four days, I have received fifteen more, some multiple times (but each individually addressed to me). I like Dan’s solution (with James’s addition in the mix just for fun). I’d even agree to subscribe to the feed (although in all honesty I would automate the “mark read, archive, delete” function, of course).