Unfaithful Interpretation and The Gold Clause Cases

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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10 Responses

  1. SuperSkeptic says:

    Your idea, definition, and examples are very intriguing, but do not forget standing issues.

  2. Joe says:

    What a way to not make a point. Rule in favor or someone, but not provide them with an actual remedy to their petition.

  3. William Baude says:

    I think it suggests that this is a very odd definition of “unfaithful.” You defend this definition by saying “I think this is unfaithful if you assume that remedies and rights should be linked absent some contrary authority. Moreover, denying a remedy for prudential reasons undermines confidence that the legal analysis was done in good-faith.”

    The second sentence in particular seems to be wrong. If the legal analysis does not take effect because of some sort of prudential/equitable/jurisdictional doctrine, that should give us added CONFIDENCE that the legal analysis was done in good-faith. There is no possibility that the underlying legal analysis was “results-oriented” in a particular case if it has no result in that case.

  4. Gerard N. Magliocca says:


    You must be a fan of dicta then. Because that’s all the discussion of the right is in these cases. That opens the door to all sorts of mischief or sloppiness.

  5. Mark says:

    Wouldn’t the relevant question, then, be what a judge is or is not being faithful to? I think the problem with the concept as it’s being advanced now is conflating the judge’s good or bad faith in interpreting the relevant legal materials, as distinct from the judge’s good or bad faith in _deciding the case_ thereafter. I.e., that there is considerable potential for mischief if a judge renders all of their analysis merely dicta doesn’t in itself affect the quality of the analysis (which I take to be, in part, the point Will was making).

    This strikes me as less an argument about interpretive theory, and more an argument about judicial duty, in other words.

  6. Gerard N. Magliocca says:

    That’s a fair point. To the extent that an interpretive theory is seeking to tell judges what they should do, though, then the conflation is apt. But you’re right that an interpretive theory might not be concerned with judges.

  7. TJ says:

    Gerard, I’m rather confused about your definition of unfaithful. In your earlier post, you posited that interpretative theories assume that integrity is a good thing. In this post you give a definition to an instance of what you perceive to be unfaithfulness, “when a court declares that somebody has a right but, for prudential reasons, will get no remedy.”

    But the only way make this an “unfaithful” application of a theory is to articulate the theory to which it departs: “assume that remedies and rights should be linked absent some contrary authority.”

    The problem is that only the people who subscribe to the theory that rights and remedies are linked are “unfaithful” to it when they act contrary-wise. And that makes it impossible to divorce the question of fidelity from the soundness of the theory to which on should be faithful. By saying that right-without-remedy cases are unfaithful, you are simply advocating the controverted proposition that rights and remedies should be linked, or at the very least that all the judges in these cases believed so.

  8. Gerard N. Magliocca says:

    I’m unaware of an interpretive theory that holds that rights and remedies should not generally be linked. Can you point me to somebody who does think that?

  9. TJ says:

    Gerard, clearly the judges in the cases you speak subscribe to it.

    And if that makes my point sound ipse dixit, that is because this is my concern about your definition of unfaithfulness. I can understand your conception of “unfaithfulness” when applied to laws, as opposed to theories.

    John McCain once proposed a law that would categorically ban torture. Presented with the “ticking bomb” hypothetical, he then said that he would expect the legal system to turn a blind eye in that particular instance. Thus, had the law been enacted, it would have been enacted with the expectation that it would be unfaithfully applied.

    But McCain’s theory has no unfaithfulness or contradiction. What is a contradiction of the law — torture when in a ticking bomb situation — becomes only an exception in the theory. Scalia does not make himself an originalist who occasionally is unfaithful to his own theory when he upholds non-originalist precedents. Instead, he styles himself a “soft-hearted originalist” whose theory–soft-hearted originalism–internally permits the exception for established precedents.

  10. William Baude says:

    I don’t have a strong view about whether dicta is a good thing or a bad thing– although my weak view is that not all dicta is created equal.

    But I do think that “well-considered” dicta– i.e., dicta with a substantial amount of reasoning and explanation, as opposed to an off-hand comment– is almost always done in particularly good-faith. Judges have less temptation to twist the answers to reach their desired results when the answers don’t have any practical effect anyway.