Separation of Powers and Prosecutions

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. Kyle says:

    I don’t recall other instances of the Supreme Court taking such an action, but it’s not that uncommon for district court judges to do so — particularly after a trial in which a party may have fabricated evidence, or perjured him- or herself.

  2. Howard Wasserman says:

    If, as some have urged, we were to eliminate the exclusionary rule in favor of other remedies, we might begin to see this more frequently.

  3. Joe says:

    Yes, a book on the Warren Court flagged that case, which troubled a majority of the justices, even if they warily agreed to uphold the conviction.

    It is not the same thing, but another striking opinion is the concurring opinion of Justice White in the Pentagon Papers case in effect providing a tutorial on how to target newspapers in the correct fashion.

  4. Ken Rhodes says:

    Gerard, in re: your final paragraph, I think you’ve overstated the case. When I red those words I saw Justice Jackson noting a point of law and directing the Clerk of the Court to forward his note to the Attorney General, who may have otherwise overlooked that point. I didn’t see Justice Jackson giving any direction to the AG.

    You may say my subtlety is a semantic cop-out. My reply would be “no, it’s one of those things that has to be taken as it was stated, not interpreted to mean other than it says.”