Omelets and Eggs

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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2 Responses

  1. Shag from Brookline says:

    I look forward to hearing back from Gerard after his completes the chapter he is working on, especially regarding incorporation of certain of the provisions of the Bill of Rights. Query whether the chapter will also include a review of the ratification process? I am presently reading Frederick Mark Gedicks’ essay “Establishment Clause Incorporation: A Logical, Textual, and Historical Defense,” which includes discussion of both Bingham and Jacob Howard (near the end which I haven’t gotten to as yet). Incorporation of the Establishment Clause via the 14th Amendment is contentious, including Justice Thomas’ anti-incorporist views. The article runs 72 pages but has a lot of white space. What caught my attention was Gedicks’ list on pages 9-11 of what might possibly result from the disincorporation of the Establishment Clause, what with the current religious/cultural wars of the GOP candidates in their quest for the presidency. The essay is available via SSRN at:

    As for Gerard’s comment on annoying/irritating people, that’s a two-way street.

  2. Shag from Brookline says:

    I finished the essay referenced in #1. I don’t think it adds to Bingham more than has been noted in past posts by Gerard, and of course it is not as complete. While I recommend the essay, I am disappointed with its closing as the author declines to himself address “Serious History.” Kurt Lash’s work is referenced extensively regarding the “entire historical record” on incorporation of the Establishment Clause. Perhaps legal historians will take up the author’s concluding point: “It is far past time, then, for a comprehensive re-examination of historical evidence on the question whether the Fourteenth Amendment applied the Establishment Clause to the states. Given the logical and textual case for Establishment Clause incorporation, it is no longer sufficient to cite Blaine as if it alone demolishes the historical case for incorporation. The high stakes surrounding incorporation for the Establishment Clause demand its serious reconsideration in the light cast by all of the Fourteenth Amendment history.” (Page 72)

    I shudder to consider the possibilities of disincorporation noted by the author at pages 9-11, some of which are very high stakes.