Legal Fictions and Constitutional Change–Part Two

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. Shag from Brookline says:

    Isn’t much of this dicta to make political points, e.g. Marbury? See Sandy Levinson and Jack Balkin’s “What Are the Facts of Marbury v. Madison?” 20 Constitutional Commentary No. 2, Summer 2003, page 255.

  2. Joe says:

    Marbury notes “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.”

    Moving on … is it true that he had no remedy? He couldn’t do it the way he tried to do it. But, not knowing the complications of the law at the time, is it technically true that there wasn’t any approach (which would have began at district court, so no violation of Art. III) available to him?

  3. Shag from Brookline says:

    Often someone who receives an injury may have no standing under Article III so he/she may have to sit down. The case/controversy interpretation of Article III in conjunction with the Cert procedure may work in tandem to deny many who receive an injury recourse at SCOTUS. That is fact, not fiction.

  4. Joe says:

    “recourse at SCOTUS”

    Sometimes, the “remedy” has to come by other means.