Author: Gerard Magliocca


The Disposition of Justice Souter’s Papers

I have received a letter from Justice Souter stating that his papers (in the New Hampshire Historical Society) will be available on the 50th anniversary of his death.  In other words, probably not while any of us are alive.

UPDATE:  For those of you emailing me, he did say “death” and not “retirement.”


Governing the District of Columbia

A quick thought that occurred to me recently is that someone could probably write an interesting article on how Congress governed the District of Columbia from its creation in 1800 until Home Rule was established in the 1970s.  The District (along with the territories) was one place where Congress did possess a police power.  How was that power exercised?  Were certain regulations justified as fine in the District but not elsewhere based on the police power distinction?  In going through the Annual Messages of the Presidents, I noticed that they often talked about issues in the District as deserving of Congress’s attention.  Anyway, I may post more about this in the coming weeks.

UPDATE:  Consider that Marbury v. MadisonBolling v. SharpeAdkins, and Heller were all cases arising out of municipal regulations in the the District.  I’m trying to think of other examples.


Advisory Statutes

Here’s an idea that I’m playing with today.  There is a law (enacted in the 1960s) that purports to limit the President’s authority to appoint family members to positions that are subject to Senate confirmation.  In part, this was passed in response to JFK appointing RFK as Attorney General, though more broadly one could describe this as an anti-nepotism statute.

I’m wondering how this statute would work in practice.  If a President did nominate a sibling to the Cabinet, would the Senate be unable to confirm that person?  If the Senate did confirm that person, would there be a judicial remedy to oust him or her from office?  Or is this a kind of advisory statute?  In other words, it isn’t legally binding–it just states a principle that we hope people will observe.

I ask this, in part, because the concept of an advisory statute might help illuminate the War Powers Act.  I’ve always found the practice under this law hard to understand.  It supposedly sets strict limits on the use of military force without congressional approval, but Presidents and Congresses only sort of pay attention to its rules.  Every President since 1973 denies that the Act is constitutional, but they observe at least the forms of the Act and decline to mount a court challenge.  Congress, meanwhile, often looks the other way when invoking the Act would be inconvenient.  Is the best way of understanding this that you can have laws that . . . don’t create law?


Further Thoughts On The Bill of Rights

I thought I’d provide an update on my book research.  There isn’t a theme to this post.  These are just random observations:

1.  I am now pretty certain that Madison never called the first set of amendments the Bill of Rights after that text was ratified.  Nothing in his papers (from 1791 to his death in 1836) contains such a reference.

2.  I came across a civics book from the 1920s that typifies the blasé attitude that people took toward the Bill of Rights at the time.  Here is the title:  The Short Constitution:  Being A Consideration of the Constitution of the United States, With Particular Reference to the Guaranties of Life, Liberty, and Property Contained Therein, Sometimes Designated the Bill of Rights.  Sometimes!?

3.  I did a search of all law review articles available on Westlaw with “bill of rights” in the title.  The first one that comes up is Felix Frankfurter’s Note (from 1915).  There are no others until after World War II, and the next one that refers to the first set of amendments is Charles Fairman’s famous article  in 1949 attacking incorporation (“Does the Fourteenth Amendment Incorporate the Bill of Rights?“)



Washing Dishes in Lieu of Payment

This is an offbeat question, but are there actual examples of restaurants requiring customers who cannot pay the bill to wash dishes as a substitute?  Everybody jokes about this, but does it actually happen?  Suppose somebody really could not pay (their credit card gets rejected, they have no cash).  What do restaurants do?


“American Founding Son” Error

The new book review issue of the Tulsa Law Review is out, and there is a review of my book and of another on the Reconstruction era.  Much to my dismay, the author found an error in my discussion of the Civil Rights Act of 1866.  I thought that since nobody had found any mistakes in the book over the past two years, perhaps perfection was achieved.  Of course not.

What I said was that some of Bingham’s criticisms of the Act were taken into account prior to enactment.  Not true.  The changes were instead made in 1870 when Congress crafted another civil rights statute that Bingham supported (based on the authority of the Fourteenth Amendment).  Oh well–hopefully I can fix this before the paperback edition comes out.


Boycotts by One State Against Another

During the recent controversy over Indiana’s RFRA, some states banned non-essential travel by state employees to Indiana.  (What would constitute essential travel to Indiana was left unsaid.)  This got me thinking about whether there are any constitutional limits on a state–acting as a market participant–boycotting another state.

An example of a state’s broad authority to discriminate in favor of its residents is that tuition charged to in-state students can be lower than for out-of-state students.  Suppose, though, that a state said: “We will not admit any students from State Y to state universities because of State Y’s policy on something.”  Could this be done?  Maybe this would flunk rational basis review, but one could say in favor of rationality that a state wants to express its outrage at State Y’s policy.  The Dormant Commerce Clause is not at issue because the state is acting as a market-participant rather than as a regulator.  Is there a Privilege or Immunities Clause claim here?  Maybe, but why?


A New Maritime Law Agency

120px-Oregon_-_sinking_-_Currier&Ives_(1883)One frustration of teaching Admiralty is that much of the law governing ships is obsolete.  Some of the foundational statutes include the Limitation of Liability Act (1851) and the Jones Act (1920), which have been widely criticized as out of date.  Though the federal courts have broad common lawmaking power in this area, many of the Supreme Court’s decisions also rest on legal and factual assumptions that are faulty. (I might give some examples in a subsequent post.)

Why is this the case?  Part of the answer is that admiralty is not a priority for either Congress or the Court.  The decline of maritime commerce (in relative terms) explains this, though there is also some contingency at work.  The BP oil spill from 2010 exposed many flaws in the regulatory regime, but the Administration’s decision to develop a one-off remedy via a compensation fund rather than seeking a legislative response to the crisis kept everything frozen in amber.

Another answer is that maritime law missed out on the administrative law revolution of the 1930s.  There is a Federal Maritime Commission (an early version of which was run by Joseph Kennedy), but the FMC’s  jurisdiction is narrow.  Administrative agencies, of course, play a crucial role in updating statutes (with the help of Chevron deference) and raise the profile of problems with current law.  It is difficult to imagine environmental law without the EPA or communications law without the FCC (consider net neutrality as an example).  It’s probably time for Congress to make the Federal Maritime Commission a full-fledged agency.


Mrs. Murphy’s Wedding Services

The recent discussion about the Indiana RFRA brings to mind the “Mrs. Murphy’s Boarding House” hypothetical that was debated when the Civil Rights Act of 1964 and the Fair Housing Act of 1968 were enacted.  Mrs. Murphy was supposed to be an old lady who took boarders in her home.  The argument was that someone like that should not be required to take in boarders that she did not want in her home, even if her reason was racial bigotry.  Ultimately, the Fair Housing Act did exempt this sort of person and that  compromise that remains the law.

The argument is now being made that a provider of wedding services (a caterer, florist, photographer, or wedding planner) should not be required to work on a same-sex marriage if he or she objects on religious grounds.  Is this Mrs. Murphy comparable to the 1960s version?  I would say no.  The boarding house example includes a home and a business, and thus one might conclude that there is some privacy interest at stake.  The wedding scenario, by contrast, only involves a business and thus does not seem to warrant an exception from a non-discrimination provision based on sexual orientation.  (If there is no such provision, then the wedding planner is free to discriminate against same-sex weddings, I suppose.)

Nevertheless, I’m left wondering about the practical effect of this modern Mrs. Murphy.  Suppose a wedding provider says on its website, brochures, or in person that they think same-sex relationships are wrong but that they will comply with state law and work on same-sex weddings upon request.  How many same-sex couples are going to want their photos, flowers, cake, etc to come from someone who thinks that their marriage is sinful, unconstitutional, etc?  Not many, I would think.  So is there really a problem here?