Author: Gerard Magliocca


Bankrupt States

First I want to note that we still don’t have an opinion in Bilski.  You would think that means the opinion will either be deeply theorized or incredibly fractured.  Tune in again next week to see if it comes out then.  Now on to the main point.

There are many states right now (most notably California) that are under fiscal stress.  Some people, like Sandy Levinson, argue that this is because those states have dysfunctional constitutions.  This leads me to wonder if a state could be deemed “not republican” under the Guarantee Clause if it goes bankrupt.  Suppose that California came to Congress seeking a loan.  If Congress said, “OK, but only if you amend your constitution to do X, Y, and Z,” that could pass muster under the Spending Clause if the reform proposals were sufficiently related to fiscal issues.  But suppose California just defaulted on its debt.  Would Congress then be justified in putting the state into receivership for some period of time?  An invocation of the Guarantee Clause would not be justiciable, of course, but that doesn’t answer the constitutional question.  What do you think?  Does the Tenth Amendment protect a state’s right to default?

(Given the reaction to my post about vice-presidential ticket splitting, maybe I should just declare this “Crazy Idea Week.”  Some might say, though, that every week is crazy week when it comes to my posts.)


Vice-Presidential Ticket Splitting

The new British Government is the country’s first coalition since World War Two.  This got me to thinking about whether something like that could happen here.  Divided government (one party controls the White House, the other controls Congress) functions like a coalition, but what about divided government within the Executive Branch?

Try this one on for size. Suppose Indiana gave its citizens an independent vote for VP.  In other words, instead of:

Obama/Biden, McCain/ Palin

You would have this:

Obama, McCain, Biden, Palin

As far as I can see, nothing in the Twelfth Amendment or federal law requires that the president and vice-president run on a single ballot.  (Indeed, the Twelfth Amendment requires the electors to take separate votes for President and VP). Thus, any state could experiment with ticket-splitting.  This would, of course, increase the likelihood that one party would win the presidency and the other the vice-presidency.

Now would this create a coalition?  Well, sort of.  A President in that split situation could sideline the VP, but that would be difficult for two reasons.  First, the VP would have an independent electoral mandate.  Second, federal law gives the VP certain responsibilities (a seat on the National Security Council, for example) that cannot be removed by the President unilaterally.  States, of course, sometimes have separate votes for Governor & Lt. Gov. (though in most states the Lt. Gov. has no official function other than succeeding a Governor), and that may be a useful source of information.  But it’s worth thinking about.


Pride & Prejudice & Zombies

There is now a series of popular books that take traditional novels or historical figures and have them fight the undead.  (“Abraham Lincoln:  Vampire Hunter,” for example.)  I haven’t read any of these and I doubt that they’re classics, but they sound entertaining.  The reason that these books work from a copyright perspective is that they all (so far) involve novels in the public domain or historical figures who do not have publicity rights.

That raises an interesting question.  Would a book like this about something under copyright be valid without the permission of the author or that author’s heirs?  Would “Catcher in the Rye v. The Mummy” be a parody subject to the fair use exception?  Or is it a derivative work that is covered by the copyright?  I think a celebrity or historical figure would have a strong claim against such a book (“Marilyn Monroe and Werewolves”), although in California that might be considered sufficiently “transformative” to get First Amendment immunity from the right of publicity.

All of this reinforces my view that you can sell anything if vampires are included.  Keep that in mind when you’re putting together that next note or book proposal.


Law & Society

I’m going to attend the conference for the first time this year (largely because it’s nearby in Chicago).  It also gives me an excuse to see my first game at Wrigley Field.  If you’re going to be at the conference, let me know.


Wonky Scholarship Question

Here’s a problem that I’d like some help on from my fellow scholars.  I noted in a prior post that as part of my research for the John Bingham biography, I was looking for his correspondence with Titus Basfield, an African-American college classmate who was a lifelong friend.

So I’ve determined that:  (1) these letters did exist; and (2) that they were probably destroyed about 15 years ago.  (I’m not totally convinced that they were destroyed, but it looks like that story that your Dad tells you about how he could have retired on his baseball card collection if your grandmother hadn’t thrown them away while cleaning the basement one day.  Sigh.)

The issue is that these letters were quoted in articles and in a book written during the 1980s.  How should I treat these quotations?  I see a few options:

1.  Use them and cite to the secondary source.  The fact that I can’t check the original letters is irrelevant.

2.  Don’t use them.  If you can’t check the original sources, then the quotes are unreliable.

3.   Explain the situation in the Introduction or in the first endnote and state that I’m going to use the quotes but they they should be viewed with a grain of salt.

4.   Only use the quotes if they are consistent with other things that Bingham said.  If they seem novel or inconsistent, then don’t use them.



Supreme Court Action

Two notes on what the Court did (and didn’t do) today:

1.  We still have no opinion in Bilski.  I was worried about what that meant in April.  Now I’m really worried.

2.  Today’s decision in Comstock upholding the federal government’s power to order the civil commitment of sexually dangerous inmates after the end of their federal sentence was not surprising.  I was interested to see, however, that Chief Justice Roberts joined the Court’s opinion and its broad view of the Necessary and Proper Clause.  Four others Justices (Scalia, Kennedy, Thomas, and Alito) adopted a narrower reading.


Memo to the Tea Party

I suppose that this post may cause some mischief, but let’s see.  Many people who are opposed to the Obama Administration are concerned about what they see as excessive deficit spending.  They want to do something about that, though so far I’m not sure they (i.e., the Tea Party folks) know what they want to do.

Here’s a thought.  In the 1970s and 1980s, there was a big push to add a Balanced Budget Amendment (BBA) to the Federal Constitution.  This proposal was approved by the House but never could get through the Senate. More important, many state legislatures passed resolutions calling on Congress to convene a constitutional convention that would send the amendment to the states for ratification.  Under Article Five, you need 2/3 of the state legislatures to convene a convention, and the BBA fell just short of that threshold.

Here’s the kicker.  Many scholars (though not all) argue that a call for a constitutional convention does not lapse unless a state legislature affirmatively repeals the prior request (as some states have done). In other words, most of the states that sought a convention on the BBA are still on record in support of that idea.  I don’t know what the current total is, but for the sake of argument let’s say it’s 30.  That means that to get a convention on that proposal activists would just need to get a few more state legislatures that did not back the original proposal to do so.  There are fascinating issues that would emerge if the 2/3 bar is overcome (Does Congress have any discretion to refuse the request?  Would its decision be a political question?  How would such a convention be organized?)  I’m not personally in favor of a BBA, but others who like the idea might want to consider this option.


Limitation of Liability and the Gulf Oil Spill

Transocean (RIG), which owns the platform that exploded in the Gulf and caused the massive ongoing oil spill, is seeking to invoke the Limitation of Liability Act of 1851. This law, which has never been amended with respect to property or environmental damage claims, provides that a carrier cannot be held liable for anything more than the value of the vessel and its contents if the ship is involved in an accident that causes those sorts of harms.  It probably goes without saying that the value of the oil platform (more specifically, what’s left of it) is way less than RIG’s probable share of the cleanup costs.

I am very skeptical that the statute applies to an offshore oil platform, in part because that is not navigable and does not involve “traditional maritime activity.”  More broadly, though, this might be the right time to abolish this doctrine entirely.  Maritime scholars (me included) have long held that in a modern world of insurance and corporate organization, the limitation of liability is obsolete.  The problem is that Congress hasn’t had any reason to repeal the 1851 Act — it’s a pretty obscure area of law.  A high-profile incident like the Gulf spill, though, might change that, especially if a court somewhere accepts RIG’s defense.


Fixed Term for Parliament

Well, my blogging hiatus lasted two whole days.  I wanted to note that the recent British election will lead to significant constitutional change there.  The new Government is proposing that from now on Parliament should have a fixed term of five years, which means that the Prime Minister will no longer control when an election happens.  Furthermore, the Government wants to raise the threshold necessary for a successful no-confidence motion to 55% of all MPs, not 50% +1.

In both respects, the UK is moving towards our Constitution.  Under Labour, Britain went from a unitary state to a federal one and adopted a Supreme Court in lieu of the House of Lords.  Now they are on the cusp of adopting our system of fixed elections and our use of supermajority rules (as far as I know, the House of Commons has never used a supermajority rule for anything before.)  Somewhere the Framers must be chuckling about this trend.


Blogging Hiatus

A combination of (1) exam grading; (2) book edits; (3) a vacation; and (4) Law & Society is probably going to keep me offline for the next few weeks, though I’ll probably break from that if anything exciting happens.