Author: Gerard Magliocca

4

Innovations in the Law

I’ve just finished reading Robert J. Gordon’s excellent book on The Rise and Fall of American Growth.  Gordon’s thesis is that economic growth has slowed in recent decades because the pace of technological innovation has slowed from the 1870-1970 period.  In essence, his claim is that great inventions of the past (electricity, indoor plumbing, the car, antibiotics) were much more crucial to raising our standard of living than the more recent improvements of the Information Age.

This got me thinking about a related question in law.  To what extent has the pace of legal innovation slowed in recent decades?  In other words, most of the big ideas in law are quite old (judicial review, patents, administrative agencies to name just three).  What was the last big idea that changed legal thought or practice?  Originalism comes to mind, but that dates to the 1970s.  What else is there?

0

The Indiana Governor’s Race

Now that Mike Pence is officially Donald Trump’s choice to be Vice-President, Indiana Republicans need to nominate someone else to run for Governor this Fall. I thought I would say something about the three prospects, as I know something about two of them. (One is the Lt. Governor, whom I do not know.)

First there is Congressman Todd Rokita, who is currently my representative in the House.  Congressman Rokita is an alumnus of the law school where I teach, though I did not know him in school.  What I can say, though, is that he’s a dunce who would be unable to serve effectively as Governor. He once called the Affordable Care Act the worst law in American history, evidently deciding that the Fugitive Slave Act was not as bad.  Enough said.

Congresswoman Susan Brooks is also a McKinney Law School alum, and I’ve had the pleasure of meeting her several times.  She’d be a terrific Governor, and I hope the GOP picks her.  She’s smart, practical, and good at building coalitions.

I should add, in the interests of full disclosure, that I gave money to the campaign of the Democratic candidate for Governor, John Gregg, who is also an alum of the law school.  If Brooks is picked I’ll vote for her.  If it’s Rokita or the Lt. Governor I’ll vote for Gregg.

6

Mike Pence

Media reports say that Donald Trump will select Indiana Governor Mike Pence as his running mate.  Since Pence is an alumnus of the my law school and I did meet him once, I thought I’d share my views.

Governor Pence is a serious man who takes his faith seriously.  He is very good at speaking clearly on issues where he has strong beliefs. He has not shown a penchant for the nuts-and bolts of administration since becoming Governor, but as Vice President that may not matter.

A more serious objection is that when the state passed a Religious Freedom Restoration Act that was deemed hostile to gays and lesbians, the Governor was totally out of his depth when questioned on the matter.  It was not something he had thought about in depth and so he floundered.  To my mind, this could become a liability in the campaign if you like Trump.  Trump is bound to say more controversial things between now and November, and I suspect Pence will not be good at thinking on his feet to defend those sorts of comments.

0

Parliament and Brexit

Now that the Tories have settled on a new Prime Minister, there is a fascinating constitutional question that must be addressed in Britain: Can Brexit be triggered unilaterally by the PM or must there be an Act of Parliament? This is not a trivial matter, because it is unclear whether a majority of MPs would support Brexit if it were put to a vote.  (Let alone the House of Lords.)

The issue is partly about whether prior Acts of Parliament confirm or assume Britain’s EU membership in such a way that only another Act can repeal them. Another issue is whether the power to withdraw from a treaty (which is one way of thinking about Britain’s obligations to the EU) is part of the royal prerogative, which is the power that a PM can exercise without Parliament.  In the United States, the President must get congressional approval for a treaty (either through 2/3 of the Senate or a majority of each House), but he can unilaterally abrogate.  Is this true in the UK?  I’m not sure what the recent precedents say, but we’ll find out.

3

Guns and Public Service Announcements–Part II

The last post got a lot of comments, and so I wanted to follow-up.  One line of thought was “What if a local or state government launched a public campaign to discourage people from voting or believing in Islam?  How are those different from discouraging people from owning a gun?”

A couple of responses come to mind.  First, any of these kinds of campaigns could be unconstitutional  depending on what they said.  For example, if the message was “Don’t buy a gun or else . . .,” that would be coercive in a way that would violate the Second Amendment.  Second, something can be very wrong but still constitutional. Third, these rights are not equivalent.  Felons cannot own guns, but felons can (in most states) vote and (in all states) practice Islam.  So you can’t say that they all must be treated equally with respect to the validity of government speech discouraging them.

Let me add one more thought.  Suppose Columbine decided to use public funds for an anti-gun message.  Given the sad history of that high school, would you really say that the town would be prohibited from responding in that way?

12

Justice Ginsburg Should Apologize

It is inappropriate for a sitting Justice to take sides openly in a presidential election, as the Justice did in her interview with Adam Liptak yesterday.  Even though it was safe to assume that she was for Hillary Clinton and was not a fan of Donald Trump, she should not say so in the media.  The younger Justice Harlan was right when he stopped voting after reaching the bench, because he said it might affect his impartiality.  Justice Ginsburg is not helping anybody by sounding off.

24

Guns and Public Service Campaigns

I want to get reactions to a thought that I’ve had about the problem of gun violence.  Right now the debate focuses on regulatory policy–under what conditions, if any, should people be able to own or buy guns.  Thus far this has been a dead end in terms of reducing gun violence.

Wouldn’t a better approach be for amenable states or municipalities to spend money on public education campaigns to discourage people from owning guns, much in the way that they do to discourage smoking? This would do nothing, of course, with respect to deranged people who want to kill many.  But there are many more easily preventable gun deaths from suicides, accidents, or domestic violence.  If lawful gun possession went down by, say 10%, many lives would probably be saved.

What are the arguments against this?  One would be that public campaigns like this don’t work.  This could be true– I don’t know what studies about similar efforts to reduce drunk driving and smoking show.  A second objection is that owning a gun is good and should not be discouraged. Here I think the answer is that different states or cities can make their own judgments about that.  People would still be free to buy a gun anywhere, and if they feel strongly that they want to live in a place where gun ownership is celebrated then they can move. (The Second Amendment does not say that the state must pat you on the back for owning a gun.)

Would the First Amendment be violated by government speech that discourages the exercise of a fundamental right?  I think that the answer is no so long as that speech is general.  In other words, forcing gun store owners or abortion providers or liquor stores to lecture customers about the evils of those goods would be deeply problematic.  But if the speech is not done at the point of sale and comes through media (TV, radio, etc.) then I see no First Amendment violation in what amounts to government propaganda.

7

The Death of Popular Constitutionalism

“Popular constitutionalism” exerts significant influence in legal scholarship, including my own. There are two aspects to this approach: one descriptive and one normative. The descriptive part looks at how social movements and institutions outside of the courts interpret the Constitution and bring about change. The normative part celebrates these activities. Isn’t it wonderful when the people or elected officials take these important matters into their own hands? Courts, after all, are unelected havens for elites. My work often points out that popular constitutionalism does not always work out so well (as in Jacksonian Democracy of the rise of Jim Crow), but I think it’s fair to say that the rosy view has been the dominant one.

I think that is about to end.  Donald Trump will probably kill normative popular constitutionalism for a generation, much as jury nullification by racist Southerners killed that idea. (The Brexit referendum may also be cited as a kind of anti-precedent for popular constitutionalism, though it’s too early to say).  This social movement is going to crowd out memories of the beloved moments of popular constitutionalism, such as the Civil Rights Movement.

Indeed, I’ll go one step one further.  I think we will soon see a revival of interest in H.L. Mencken, who made his name by criticizing democracy as expressed by what he called the “booboisie.” Mencken had his own problems (like being an Anti-Semite), but his disdain for Middle America is probably going to get a more sympathetic hearing in certain quarters.

1

The House of Commons Is Now The House of Lords

In the nineteenth and early twentieth centuries, there was a healthy debate in Britain about when the unelected House of Lords could legitimately oppose the elected House of Commons.  The answer from 1832 to 1911 was that this could be done on important issues not involving the budget unless the House of Commons had a mandate from the voters, which was defined as a victory in a general election where the issue was squarely presented to the voters. In 1911, this consensus broke down when the Lords did not relent in the face of such a mandate, and a second general election and the threat of “Lords-packing” from the King was required to get the Upper House to back down and approve a statue stripping them of their absolute veto power over future legislation.

Brexit poses a related problem.  When should the elected House of Commons oppose the will of the electorate as expressed in  a referendum?  Formally, of course, the referendum was only advisory.  In practice, the current assumption is that Parliament will bow to the “Leave” vote.  Suppose, though, that in a year or two a majority of MPs conclude that Brexit would be a disaster and refuse.  In that scenario, the House of Commons would effectively be demanding that the result of the referendum be confirmed by a general election fought on that issue.

I think this would be a perfectly legitimate “sober second look” for such an important question.  If people really want to leave the EU, then the MPs who vote no on leaving would fare poorly.  Now do I think that a majority of MPs will actually resist the result of the referendum?  Right now, I’d say no.  Things might look different in 2017 though.

1

The Internal Dynamics of the Court

The result in Fisher was surprising, but the case illustrates an important point about how appellate courts work.  In Fisher I, the scuttlebutt is that a majority opinion was drafted (possibly by Justice Kennedy) to strike down the UT admissions plan and place new obstacles in the way of racial preferences in higher education. Justice Sotomayor then circulated a draft dissent that was, by all accounts, very fierce (some of which made its way into her subsequent dissent in the University of Michigan case).  This dissent caused the majority to back down and the compromise remand to the Fifth Circuit.  In the interim, something caused Justice Kennedy to change his mind (though we won’t know what for a long time.)

The point is that dissents are not just expressions of discontent or appeals to the future.  Sometimes they actually change the outcome of a case. This is why knowing who the influential Justices are is impossible until long after decisions are made, because we usually don’t know how those internal conversations go.