More On Superpenalties

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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4 Responses

  1. Andrew Coan says:

    Interesting. What about the Equal Protection Clause? Certainly one way to understand it is as a generalization of the principle underlying the Direct Tax Clause: if you want to do something painful to someone else, you must also do it to yourself.

  2. Ken Arromdee says:

    Would “you can have the individual mandate, as long as you call it a tax” be a superpenalty, given the political sacrifice in admitting one is raising taxes?

  3. Gerard Magliocca says:

    Andrew — I discuss the Equal Protection Clause in the draft. It depends whether you want to call that a penalty or a superpenalty.

    Ken — It’s a penalty, maybe not a superpenalty. (Clearly, I need to do more to distinguish these terms.)

  4. Joe says:

    “which permitted Congress to tax slaves but held that such a tax would also have to be paid by states with no slaves”

    I’m confused by this. Congress (see Art. I, sec. 9 too) couldn’t merely apply a tax on slaves? Or, some sort of excise on slave trading ala an occupation tax? How would that be paid by states with no slaves? The direct tax provision gives them the POWER to tax more than slaves, but they don’t have to use it that way.

    The sacrifice to me is the enumeration requirement that benefits slave states.