Author: Gerard Magliocca

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Qualified Immunity Reform

Last month I wrote about how the current state of qualified immunity doctrine troubled me for a reason that I could not articulate.  After working through some of the cases on damage actions for official misconduct, I think I know what the problem is.

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New Books by My Colleagues

I’m pleased to announce that two of my friends at IU–Indianapolis have new books coming out.  One is the The Political Centrist by John Hill, which is being published by Vanderbilt University Press.  (You can find a description of the book here.)  The other is Persistent Inequality:  Contemporary Realities in the Education of Undocumented Latina(o) Students by Maria Lopez (with G. Lopez) and is being published by Routledge Education.  (That link is here.)

Congratulations!

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Impeachment in Nebraska

The other day a friend asked me how impeachments work in Nebraska given that it has a unicameral legislature.  I was embarrassed that I didn’t know.  After all, I am an Admiral in the Nebraska Navy.  (For more on that office, see here.)  It turns out that a majority of the Legislature is required to impeach and two-thirds are required to convict after a full trial in which members must find by clear and convincing evidence that an impeachable offense occurred.  The use of a specific burden of proof is an interesting twist on impeachment that is not in the Federal Constitution.

More broadly, this example points up the fact that constitutional scholars don’t pay enough attention to state constitutions.  There are terrific comparative resources there that, at least in some instances, are probably more instructive than doing comparisons with foreign countries.  (The California Constitution represents the leading dysfunctional case study.)

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The Wizard of Oz and Populism

Since91px-The_Wonderful_Wizard_of_Oz,_006 I have a book coming out about William Jennings Bryan, I’m sometimes asked whether it’s true that L. Frank Baum’s 1900 book “The Wonderful Wizard of Oz” is an allegory about the 1896 election.  The answer is no, but that interpretation is clever.

Consider the following points.  The book is set in Kansas — the heartland of Populism in the 1890s.  The magic shoes that Dorothy takes from the Wicked Witch of the East (in the book) are silver, which represents the free silver ideology of Populism.  The yellow brick road, of course, is the gold standard.  Dorothy’s comrades-in-arms are farmers (the Scarecrow), factory workers (the Tinman), and William Jennings Bryan (the Cowardly Lion — all bark and no bite).  Where are they going?  The Emerald City, where everything is or looks green (Washington DC, which is tainted by corruption.)  And then there’s the Wizard, who is a total fraud (William McKinley).  I’m not sure who the Wicked Witch of the West, Toto, or the Winged Monkeys are supposed to represent.

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The Harvard Law Review Foreword

I have a bone to pick with the editors of the Harvard Law Review. (Actually, since HLR has never published any of my articles, I guess I have two bones to pick with them, but that’s another story.)

This year’s Foreword, which is the signature piece in HLR every year, is by Adrian Vermeule and entitled “System Effects and the Constitution.”  Putting aside the merits of the Article, it is curious that a piece that is supposed to put the prior term’s Supreme Court cases in context doesn’t . . . er . . . spend any time discussing last year’s cases.  Granted, the format of the Foreword (“I’m coming up with a theory to tie together cases connected by nothing other than random scheduling.”) may be worthless, but you’d think that such a dramatic change would be accompanied by some kind of explanation.

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What If?

68px-Question_mark.svgPicking up on the thread last week about the use of counterfactuals in legal history, I thought I’d list some of my favorites in constitutional law.  (For  you law review editors out there, this would be a great symposium topic (or a book, for that matter.)).  Now obviously there are many 5-4 Court decisions where we could play the game of saying what would have happened if one Justice in the majority changed his or her mind, but let’s go for some more creative examples.

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Negligent Corpse Mishandling

113px-The_death.svgOne of my favorite exotic torts (especially as we reach the end of the semester) is the negligent mishandling of corpses.  This cause of action constitutes an exception to the principle that recovery for the negligent infliction of emotional distress is limited to those who observe an accident in which someone close to them is injured or killed. Under the Restatement (Second):  “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.”  Classic examples would include spilling the body from the casket or putting the wrong one in the grave.

Of course, one could say that this is a claim by the deceased for their interest in the proper disposition of their remains that is being brought by the estate.  But it probably makes more sense to think about this as an emotional distress claim of the living that is just one step removed from witnessing a death.

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KSM on Trial

The decision to try some of the ringleaders of 9/11 in the District Court for the Southern District of New York raises many interesting questions.  Here are a few below the fold:

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