The Wrong Suit for the Right Reason

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. AndyK says:

    I would take that analysis and run with it, applying it to all the “voluntary” deprivations of due process in higher ed. Student athletes “agree” to social media blackouts, jurisdictionally-unlimited “character” requirements, and so forth. But nursing students agree to many similar onorous requirements, psych students do as well, and law students, etc. Not just the NCAA, but the ABA and other accrediting agencies with a privileged monopolist status to instate conduct codes in higher ed— all of these are currently all-but-immune from lawsuit when they coerce universities to deprive students of due process or when they do it themselves. It needs to stop.

  2. PrometheeFeu says:

    Have you blogged before on why the NCAA should be considered a state actor? I’ve heard some of the arguments, but never found them particularly convincing.

  3. Joe says:

    Didn’t the university voluntarily agree here?

    As to arbitrary treatment, if not a “state actor,” other means need to be present to address that sort of thing. Legislation, perhaps tied to funding, seems an appropriate avenue. I’m not sure overturning that opinion would be the best approach.

  4. Joe says:

    [I notice the ultra vires comment, but apparently it is thought to be a weak argument.]