Author: Gerard Magliocca


“Yes Prime Minister” on Political Logic

I haven’t done one of these posts in a while, but I rather like this syllogism about how elected officials think about a crisis (courtesy, of course, of Sir Humphrey).

“We must do something.

This is something.

Therefore we must do it.”


The Right to Default

I mentioned in a prior post that I’ll be giving a talk later this year on dysfunctional state constitutions, and part of that talk will examine whether a state has the right to default on its bonds.  Research shows that many have defaulted in the past (following the Panic of 1837, the Panic of 1873, and the Great Depression).  The issue is whether Congress can step in and compel a state against its will to accept a federal bailout.

At first blush, I think that the answer is no unless Congress concludes that a default means that a State is no longer a “Republican Form of Government” under Article Four.  New York v. United States stands for the proposition that Congress generally cannot to direct a state legislature to implement a federal program.  That is what cramming a bailout down a state’s throat would do, since the state legislature would, in effect, be forced to spend federal money.

I suppose that Congress could just assume the deadbeat state’s debts, as Alexander Hamilton did with respect to the state debts that preceded 1789.  I don’t know whether any of those states opposed assumption.  If they all consented, then that does not provide a helpful precedent.  If some states were against that action, though, then what Hamilton did almost certainly would support a similar action now.


The Lost Speech on the 14th Amendment

I am in Washington DC doing research for my John Bingham biography.  (And in case you haven’t heard, it’s boiling hot here.) There is an interesting point about the project that I want to share.

The bane of my existence these days is my inability to find anything that Bingham said about Slaughterhouse or any case interpreting the Fourteenth Amendment.  There are no public statements and (so far at least) I cannot find any private ones. Moreover, I see no evidence that anyone even asked him for his views on the issue.  Part of the reason that there is nothing in the record is that Bingham was in Japan from 1873-1885 as our Ambassador.  He may have felt constrained in that role to offer public comments about Supreme Court cases, or he may just have not been paying attention.  (That isn’t a satisfying explanation, but it’s the best that I can do at this point.)

This raises a fascinating counterfactual.  Suppose Bingham had not been denied renomination for his congressional seat in 1872.  Then he would have been in Congress when Slaughterhouse came down.  It is hard to believe that in that public role and with that platform he would not have made a major speech either attacking or praising the decision.  Would this have mattered in subsequent cases?

The answer may turn on whether Bingham’s views were representative or idiosyncratic.  If they were representative, then removing him from the scene at that crucial time should not have mattered much.  He may have been more eloquent or authoritative as the drafter of Section One, but others would have expressed similar views and moved the legal culture in a similar way.  If his views were unusual, though, then silencing his voice would have counted for a lot.  He was in no position to shape the law from Japan, and hence his position on incorporation steadily declined.


History as Advocacy

Historians commonly complain about the use of “law office” history in briefs or opinions.  They point out, for example, that lawyers typically use historical materials selectively, fail to provide the necessary context for quotations about a given issue, or try to extract a conclusion from events or discussions that are messy and ambiguous.

Given this criticism, I am struck by the relatively new phenomenon of the “Brief by Historians” on behalf of a party in constitutional litigation (e.g., in the McDonald case). For those of you who have joined these briefs, I’m wondering if you’d like to use the comment thread to explain how you square joining such a brief with your role as a historian.  My position is that I would never join such a brief — even if I agreed with the underlying legal position — because of the concerns noted in the prior paragraph.


More Thoughts on McDonald

This goes to the substance of the opinions rather than to their style.

1.  The Court does not give a satisfactory account for why stare decisis does not counsel against incorporation here.  I guess its answer is that the incorporation of the Second Amendment under the Due Process Clause was not previously considered (or was not considered under the “selective incorporation” framework) and thus there is no reliance interest involved.  That doesn’t seem right.  Why isn’t the more logical way of thinking about this to say that for two centuries there was no federal constitutional right involving guns that bound the States?  Now you might well think that this should not be an impediment to incorporation–similar traditions did not preclude the incorporation of other rights–but some explanation would have been helpful.

2.  I think that Justice Stevens’ analysis of the Second Amendment right is convincing.  (Once you put aside all of his broader jurisprudential musings, which are pretty weak.  For instance, his procedural/substantive distinction makes no sense given the full incorporation of the First Amendment.). Because I think that Justice Black’s total incorporation view is the correct one, I think the Court got this case right.  This is a good example, though, of the difference between being a professor and a judge.  As a judge bound by the selective incorporation approach, I think McDonald is a hard case.

3.  Justice Breyer tries to argue that he’s taking a pragmatic view of the issue in contrast to the formalism (history-ladened) approach of the Court.  The problem with that is that a real pragmatist would point out that gun rights have become much more popular in the last couple of decades, and that it’s now basically political poison to oppose them.  This doesn’t mean that the right should necessarily be constitutionalized, but it does mean that his argument that there is no popular consensus on the issue (just citing some briefs produced for litigation) isn’t worth much.


Thoughts on McDonald

In this post, I thought I’d use McDonald as a vehicle for talking about rhetoric in judicial opinions.

First, when did opinions turn into law review articles?  The art of the short and pointed dissent, it appears, is lost. I think the Justices should really ask themselves whether they are persuading anyone by going on ad nauseum.  (The same goes for Justice Stevens’ dissent in Citizens United — way, way too long.)  Now I’m biased–I think most law review articles and books suffer from the same vice, but at least there you can argue that people feel pressure to pile on because they want to get tenure.  The Justices . . . er . . . have tenure.

Second, the debate between Justice Scalia and Justice Stevens about methodology was completely pointless.  Can’t we just stipulate that all methods of constitutional interpretation are malleable and subject to abuse?  And can the Justices on both sides please stop pretending that they don’t use legal materials selectively?

Third, I would like to hear the following statement more frequently.  “I dissented in Case X, but logically Case X must control Case Y, so I’m going to join an opinion extending Case X to Case Y.”  Too often nowadays, what we get is “I dissented in Case X, and I’m going to pretend that Case X was decided the way I wanted.”  Justice Breyer’s attempt to relitigate Heller is a good example of this problem, though again all of the Justices are guilty of this from time to time.

I’ll have more to say about the substance of the opinions later.  In particular, I thought some of the assertions in Justice Breyer’s dissent were ill-founded, while I thought the part of Justice Stevens’ dissent that focused on guns (rather than on Justice Scalia) were quite thoughtful.  For a 90-year old guy, he’s been busy!


More Thoughts on Bilski

To paraphrase Bon Jovi, Bilski gives minimalism a bad name.

The Court’s rejection of the “machine or transformation” test as the exclusive means of defining a patentable process is reasonable.  But where is the guidance?  Justice Kennedy is just way off when he says “this Court’s precedents on the unpatentability of abstract ideas provide useful tools.” Really?  That line is especially  funny when it’s paired with the following sentence, which talks about “if the Court of Appeals were to succeed in defining a narrower category or class of patent applications that claim to instruct how business should be conducted,” then that might well be fine.  IF?  MIGHT?  I guess the Court isn’t so confident that its precedents contain useful tools.  Perhaps that is why Justice Scalia did not join these parts of the Court’s opinion, leaving them as stating the views of only a plurality.

Perhaps the Federal Circuit will simply look to Justice Breyer’s concurrence (which Justice Scalia joined in part), and keep applying the machine-or-transformation test until the Supreme Court takes another patent case.


The Bottom-Line of Bilski

To:       Federal Circuit

From:   Supreme Court

RE:       The Test for Business Method Patents

We don’t like what you came up with, but we can’t come up with anything.  Try something else, and we’ll let you know what we think about that.

UPDATE:  I wonder if Justice Stevens lost his majority somewhere along the way.


Elizabeth Littlefield Confirmed

As a follow-up to my post from two weeks ago, the Senate today confirmed Elizabeth Littlefield’s nomination to head OPIC (Overseas Private Investment Corporation).  Hopefully other relatively uncontroversial nominees who are being “held” by anonymous Senators will be confirmed swiftly.


Final Supreme Court Opinions on Monday

The Court just announced that Monday will be the last day for opinions.  That means that Bilski and McDonald will come down then, and I plan on doing several posts commenting on those decisions during the day.

UPDATE:  Several people have pointed out that Justice Alito is the only one without an opinion from the March sitting, which means he probably has McDonald.  Justice Stevens is the only one without an opinion from the November sitting, which means he probably has Bilski.