Author: Gerard Magliocca


Flagrant Age Discrimination at Indiana University

I am not in the habit of criticizing my employer, but here goes.  Indiana University has a policy holding that the deans of individual schools on campus must retire at 65.  In the past, this policy was rarely enforced, but the current President — Michael McRobbie — has decided to enforce the policy strictly.  This mindless age discrimination now threatens to force out my dean (who is doing a fine job) despite assurances given when he was hired three years ago that he would not be subject to this age limit.

I think that a serious inquiry should be undertaken to determine whether President McRobbie and IU are in violation of the ADEA.  Even if that is not the case, I think the President’s behavior is shameful and sends a clear message to campus that senior faculty are not welcome.


Summer Programs in China and Croatia

I’m the co-director of the China Summer Law Program at Indiana University School of Law — Indianapolis, and I want to make a pitch to students who might be interested in China or in our other summer  program in Croatia.  The China course is held at Renmin University in Beijing and runs from the third week of May until the third week of June.  We offer an overview of Chinese law taught by the faculty that focuses mostly on commercial subjects but also covers criminal and public law.  Learning about a legal system that is still under construction is fascinating, as is living in China and interacting with Chinese law students.  The Croatia program is held in Dubrovnik (a sun-splashed city on the Adriatic) from late June until mid-July and concentrates on Central and Eastern European law.

The link to the information on the China program is here.  The Croatia link is here.  They are both exciting opportunities and I hope you’ll consider applying.


Native Americans and Equal Protection

I want to flag this forthcoming article by Bethany Berger entitled “Reconciling Equal Protection and Federal Indian Law.”  This is one of the best efforts I’ve seen to take the original understanding of the Fourteenth Amendment seriously with respect to how Native Americans should be treated.  My own interest is how the Native American example should inform equal protection doctrine generally, which I think is a major blind spot in antidiscrimination law.  While this is not what Berger is talking about, her focus on the interaction of these concepts is well worth reading.  The Abstract follows the jump:

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The Will of the People

I recently read Barry Friedman’s book on judicial review, which I would definitely recommend for anyone who wants to learn about the evolution of the Supreme Court.  While the history that Barry covers is useful in and of itself (and I’ll need to grapple with some of his points as I revise my book), there are some larger themes that are worth discussing.

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Qualified Immunity

Students who are looking for paper topics sometimes ask me where I get my ideas.  The creative process is mysterious.  If I really knew how to be creative, I’d be an inventor or a scientist.  Nevertheless, there are some tendencies that I can identify.  First, ideas can develop organically from a prior project.  In other words, while working on something you come across something else interesting and get an idea.  Second, ideas can form in response to a specific event (a new case or statute) that gets you exercised.  Third, there may be something that bugs you or feels wrong.  Then you explore that topic and discover something new.

With respect to the last of these categories, I’ve long been troubled by the state of qualified immunity doctrine. This is a subject of enormous practical importance for anyone seeking to sue public officials for violations of civil rights or other injuries.  Most of the rules that govern these suits were made by judges in just the last 30 years and have almost no connection to historical practice or precedent in the sense that they give far greater deference to government wrongdoing than was true in the past.  Strangely enough, this does not seem to have aroused much sustained academic criticism (at least as far as I can find).  So now I’m poking around to see if I should write something about this.  Perhaps my hunch or feeling will turn out to be without foundation.  We’ll see.


Louis Brandeis

I85px-Louis_Brandeis_Associate_Justice_c1916 just finished Mel Urofsky’s new biography of Justice Brandeis and it’s terrific.  I must admit (sheepishly) that I had never focused on Brandeis and his career before.  The sweep of his achievements is truly astounding.  I was especially fascinated by the discussion of his career in practice, as the judicial part is more accessible through his opinions.

My only quibble (a minor one in a book hundreds of pages long) is that no explanation is given for why Brandeis joined Holmes’ opinion in Buck v. Bell.  Perhaps that is because no information exists on this point, but I would be curious to know whether Brandeis had any enthusiasm for eugenics or just went along because sterilization of the mentally retarded was an “experiment” in the states that deserved judicial deference.

BTW, I’m having Lasik tomorrow.  Thus, I’ll be offline (hopefully not for long) until I heal up.


Constitutional Amendments that Failed in Congress

As part of my research on the Child Labor Amendment, I’ve come across an interesting issue.  There is a strong assumption that constitutional amendments are hard to enact, in part, because you need a two-thirds vote in each House of Congress.  It turns out, though, that there are very few amendment proposals that have received a majority in each House but not two-thirds.  In other words, in practice, the rules that govern statutory enactments (including the filibuster) weed out almost all amendment proposals.

Think about it — in the last twenty-five years the only two contrary examples are the Balanced Budget Amendment and the Flag Burning Amendment.  Reaching back further, I don’t think there are many others (though I’d be interested if people know of some).  One wonders, then, why there is a belief that the two-thirds rule is the reason for the lack of amendments rather than robust political support (or norms) in favor of the text as is.


Aspirational International Law

120px-Peace_doveSo I go away for a few days and the President wins a Nobel Peace Prize.  I’ve always wondered how high you have to go in life before you no longer need a resume.  I’d be busy updating mine to say “Nobel Laureate,” but I guess the Chief Executive does not need to do that.  (BTW, I’m not sure this is any more bogus than the President’s “Spoken Word Grammy” for his books.  What does that mean exactly?)

My favorite line of defense, however, is that this is an aspirational prize.  It’s not what he’s done.  It’s what he’s going to do.  Unfortunately, this idea has a poor track record.  Frank Kellogg, the Secretary of State under Coolidge, won a Nobel in 1929 for his role in crafting the Kellogg-Briand pact, in which the United States and other great powers agreed to renounce war as an instrument of national policy.  International law is still working on that one –last I heard.


Teaching Constitutional Law

I’ve been working on my Con Law syllabus for next semester.  I must admit that I find Con Law the most difficult course to teach, even though it’s the subject that I enjoy the most.  Why is that?

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