Author: Gerard Magliocca


The Confederate Constitution

Since the Governor of Virginia just declared April as Confederate History Month (because that’s the month they lost the war?), I thought I’d do a post about the Confederate Constitution.  It’s interesting to look at because it mostly apes the 1787 Constitution, thus the distinctions are pretty easy to spot. Here are some notable differences: Read More


Where is Bilski?

Before I get into business method patents, I want to make one observation.  In this polarized age, I think we have finally found one thing that 90% of Americans — liberal and conservative, Republican and Democrat — can agree upon.  Duke must be beaten tonight.  Go Butler!

The Supreme Court heard argument last November in Bilski v. Kappos, which involves the scope of patentable subject matter.  There is no decision yet.  This is somewhat worrisome, although it is always hard to draw conclusions when you’re stumbling around in the dark.  The delay suggests to me, however, that the Court may be considering something more ambitious than wise in its opinion.  We’ll see.


Trial By Battle and the Civil War

Recently I came across a great article by Cynthia Nicoletti entitled “The American Civil War as a Trial by Battle.” (28 Law & Hist. Rev. 71 (2010)).  Trial by battle was one the dispute resolution mechanisms used under the early common-law writ system (basically, the litigants or their champions fought in single combat and the winner won the suit).  The theory behind this was that God would ensure that justice would prevail (presumably based on a preponderance of the evidence, but who knows what He uses).

While this system eventually fell out of favor and was replaced by jury trial, the Civil War was often described as a trial by battle on the issue of secession.  This served the interests of both sides in the conflict. Southerners claimed that their legal reasoning was right–they just lost on the battlefield. Northerners used the metaphor because it showed that their victory was God’s will.  Indeed, Lincoln alluded to this idea in his Second Inaugural:

“If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”


Representative Democracy

“One of the countless drawbacks of being in Congress is that I am compelled to receive impertinent letters from a jackass like you in which you say I promised to have the Sierra Madre mountains reforested and I have been in Congress two months and haven’t done it.  Will you please take two running jumps and go to hell.”

Congressman John McGroarty, engaged in constituent service (1934).


John Bingham Biography

I am pleased to announce that NYU Press is giving me a contract to write a John Bingham biography.  (I’m still working on the best title.  “John Bingham:  American Founding Son” is my favorite so far, but I’m open to other suggestions.)  I’m very excited about this book, though I recognize that it will consume much of my energy for the next few years.  This is also the first project where people other than me will care about how it turns out.  I hope that in the coming years I can engage all of you who are interested in Bingham as I try to do my best to present a balanced account of his extraordinary career.


Go Butler!!

I live three blocks from campus and walk to home games at Hinkle Fieldhouse, so this is unbelievably exciting.  Do you believe in miracles?  I’m starting to.

Now returning you to legal topics . . .


History of the Common Law

One of the best classes that I ever took (in college or law school) was John Langbein’s “History of the Common Law.”  Professor Langbein’s lectures were always fascinating and exceptionally lucid, partly because of the care (that I didn’t really understand then but do now) that he took with organizing and editing the course materials.

Now he (along with Bruce Smith and Renee Lerner) has produced a textbook from those materials.  The coverage is phenomenal–the writ system, the origins of jury trial, the law of torture, Star Chamber, church courts, legal education, the Year Books, and Equity among other things.  (They ignored maritime practice before the Lord High Admiral, but hey, no book is perfect).  Moreover, the book looks terrific, with lots of illustrations and excerpts from original documents.  It’s not inexpensive and you can’t get in on a Kindle, but this is something that is worth putting on your shelf.


Top 10 Books

I thought I’d join in on the thread going around asking people to name the ten books that influenced them. I’ll leave legal books out to make this more interesting.

1.  Inside the Third Reich (Albert Speer) – The best book about evil ever written, precisely because Speer (one of Hitler’s close friends and ministers) tries so hard to explain his actions without admitting that he knew about the Holocaust.  This requires more reading between the lines than any other book.

2.  On War (Carl Von Clausewitz) — This unfinished work captures certain fundamental concepts about politics in a way that no other does.

3.  I, Claudius (Robert Graves) — I’ve always identified with the main character for some reason.

4.  Moby Dick (Herman Melville) — “All visible objects are but as pasteboard masks.”  Plus, there are whales.

5.  Julius Caesar (William Shakespeare) — Maybe this shouldn’t count because it’s a play, but Antony’s funeral oration is one of the few speeches that I can recite from memory.  (Though I also love Caesar’s “I am constant as the Northern Star” speech right before he gets hacked to pieces.)

6.  Extraordinary Popular Delusions and the Madness of Crowds (Charles Mackay) — Still the best book on economic bubbles.

7.  The English Constitution (Walter Bagehot) — Well, OK this is a law book, but Bagehot was not a lawyer, so I’m making an exception.

8.  Titan (Ron Chernow) — This biography of John D. Rockefeller Sr. is a model for how I want to write my biography of John Bingham.  (More on that soon.)  Chernow’s biography of Alexander Hamilton deserves an honorable mention.

9.  Don Quixote (Miguel de Cervantes)  — There’s something oddly compelling about it.

10.  Lend Me Your Ears (William Safire) — Sure, it’s just an anthology of great speeches, but the study of rhetoric is underrated and you can’t do better than this volume.


“Under God” and Health Care

Let’s see if I can stir the pot with this one.  To my mind two purposes of legal reasoning are: (1) to expose gaps between the stated reason for an action and the real reason; and (2) to expose gaps between what the law requires and popular sentiment (or the preferences of judges).  Let’s look at two examples.

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