A Bad Day At the Office

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. A.J. Sutter says:

    This case of course receives a lot of attention in Japan, where there is plenty of pro-whaling sentiment, although considerably less firm than in the past. A couple of things have puzzled me about this case, and maybe as an admiralty expert you could explain:

    (1) How is a US injunction against Sea Shepard to be enforced, given that the activities are in Antarctica? Can anything more be done than taking action against Sea Shepard assets in the US, assuming they stay out of US waters?

    (2) Given that Australia has issued an injunction against the Japanese whalers, to which the 9th Circuit refused to accord comity, whose injunction takes precedence? Or is this just a PR “battle of the injunctions,” none of which can really be enforced, but each of which can be used as justification for the respective winner’s actions?

    (3) A bit farther afield from admiralty: Reading Judge Kozinski’s remark that

    Where a valid law speaks to the proper level of deference to a particular public interest, it controls. See Golden Gate Rest. Ass’n v. City & Cnty. of S.F., 512 F.3d 1112, 1126–27 (9th Cir. 2008). Our laws defining the public interest in regards to whaling are the Whaling Convention Act and the Marine Mammal Protection Act, both of which permit whaling pursuant to scientific permits issued under the Whaling Convention. 16 U.S.C. § 1372; 16 U.S.C. § 916c. Cetacean’s activities are covered by such a permit and thus are consistent with congressional policy as to the marine ecosystem.

    was an analogous line of reasoning (minus the treaty) used to uphold Jim Crow laws?

  2. It’s worth noting that one of the judges dissented from the majority’s decisionto remove the judge, arguing that the move was unprecedented and unwarranted.

    (The District Court judge’s opinion, by the way, is much better than Judge Kozinski’s.)