Family Law and Racial Preferences

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. Orin Kerr says:

    How do cert denials constitute a body of law that can be compared to merits decisions?

  2. Refill says:


    I think the idea is to use a vomit-inducing amount of jargon (“a normative perception that remaining instantiations of race in family law are, at their core, benign”) to conceal the fact that the article says and relies on nothing of value.

  3. Gerard Magliocca says:

    Well, it’s not my article, but if one has access to the papers of the Justices and can establish that some had a practice of denying certiorari in cases because they are in tension with certain precedents, I think that is useful information.

  4. Katie Eyer says:

    Just came across this and just wanted to briefly respond in case anyone is still following this thread. First, Gerard, thanks for posting a link to the piece!

    And Orin, in response to your query — the claim in the article is not that denials of certiorari are somehow doctrinally significant in such a way that they can or should override merits decisions. Rather, the claim is that to the extent we have historical evidence suggesting that the Justices may not truly ascribe to their own articulated rule (and have used denials of certiorari as a vehicle for doing so), that is something that has scholarly (and potentially practical) significance. (For example, when coupled with the opinions of some of the Court’s race conservatives/moderates in cases like Johnson v. California and PICS, I think it suggests there may be a real practical possibility that a majority of the Justices may be motivated in certain contexts to retreat from the broad categorical colorblindness approach they have endorsed in the affirmative action cases — something of both scholarly and practical significance).

    I’m working right now on a thought piece offering a broader defense of why we should have more scholarly consideration of denials of certiorari review — I think that in view of the increasing tools that we as scholars have at our disposal to understand how they may be being used by the Justices (papers of the Justices available in a shorter time frame, comprehensive databases from which it is fairly easy to ascertain patterns in denials of review), these are an increasingly valuable source of insight from a scholarly perspective. In short, I still think there are good reasons for the doctrinal rule (that cert denials aren’t treated as doctrinally significance), but I think we should differentiate that from the potential value of certiorari denials as an avenue of scholarly inquiry.