Counting to Five

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. Bryan Gividen says:

    There’s an interesting division on the underlying theory of the DIG. Justice Stevens is on the record as saying the Rule of Four is completely spent after cert has been granted. So if the Court determines that the case is “an unwise vehicle” to address a legal issue — especially a new constitutional issue — then each member of the Court should be free to vote to DIG. See New York v. Uplinger, 467 U.S. 246, 250 (Stevens, J., concurring). Uplinger was itself a case where the Court digged on a 5-4 vote; presumably those four votes should have been sufficient to compel a decision, but that wasn’t enough for Stevens.

    Like you note, some do think that there is or ought to be a “Rule of Five” to vote or at least a rule that requires one of the Justices who voted to grant to switch their votes. See, e.g., United States v. Shannon, 342 U.S. 288, 298 (1952) (Douglas, J., dissenting).

  2. Joe says:

    I like Frankfurter:

    “After the argument of these cases, it became manifest that they were legal sports.”

    Heck, it was manifest this was something of a legal sport beforehand but Stevens’ position at any rate to my uneducated eye seems logical. Be interesting to know what justices wanted this case (Uplinger suggests a comparable situation) but anyway, this specific matter has been truly convoluted for years now. Why end now?