Author: Gerard Magliocca


The Tragedy of William Jennings Bryan

My book is now available for pre-order on Amazon.  All of the bells and whistles on that ad (e.g., “I couldn’t put it down.”  — The Dalai Lama) will soon follow.

UPDATE:  When I ask people to buy the book, I can’t help but think of the line from Mayor Quimby’s reelection ad:  “If you were running for mayor, he’d vote for you.”


What’s The Rush?

I said I would be offline this week, but then I saw that the District Court in Michigan upheld the constitutionality of the individual health insurance mandate.

Now this case and the others that are pending are very interesting for those of us that follow these issues. And I hate to be the skunk at the garden party, but . . .

The individual mandate does not come into effect until 2014. The last time I checked, this is 2010. It seems to me that the proper response to all of these cases is to say, “Your challenge is not ripe (or you have no standing). Take a hike.”

Can you come up with a plausible argument that the merits can be heard now? Sure. But why is that warranted at this point?


Constitutional Esoterica

I’m a law nerd.  I’d have to be to do this all of the time.  So a delight for somebody like me is to come across an obscure constitutional provision that was important in a particular case.  This recently happened as I was writing up my paper on the Gold Clause Cases.  The argument of the bondholder in Perry v. United States was that the Federal Government could not substantially repudiate (or devalue) its obligations by reducing the gold content of the dollar and applying that change to Treasury bonds issued prior to the revision.  In support of that argument, they cited, among other things, Section 4 of the Fourteenth Amendment.  I submit that even most constitutional experts don’t know what Section 4 says.  Here it is:

“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”  [The rest of Section 4 says that neither the United States or any state shall pay Confederate debts or compensation to slaveholders.]

The bondholder in Perry claimed that the substantial devaluation of Treasury bonds was questioning the validity of the public debt contrary to Section 4’s command.  What’s more, the Supreme Court agreed.  Chief Justice Hughes’ opinion for the Court stated that Section 4 was “confirmatory of a fundamental principle” about the “integrity of the public obligations.” Of course, the Chief Justice then turned around and said the bondholder had no remedy for this constitutional violation (on pretty shaky grounds).  And, as far as I know, that was the last time anyone cited Section 4 to the Court.  Until, of course, somebody decides to litigate the deliberate creation of inflation by a future Congress or Federal Reserve.

UPDATE:  I’ll be offline for the next week-and-a-half for Fall Break.


Influence on the Supreme Court

I just finished the new biography of Justice Brennan, and I was very impressed.  My thought was that there was no way a balanced account could be written about such a polarizing figure, but the authors pulled it off. Now the book does suffer from the weakness of the judicial biography genre, which is that judges generally lead dull lives, but it’s a great resource on the Court’s internal politics during his tenure.

Brennan is widely acclaimed as one of the most “influential” Justices.  What do people mean when they say that?  I think that there are several types of influential Justices depending on your time horizon.

1.  The Median Justice.  In any given period, somebody is the swing vote on the Court.  Right now that is Justice Kennedy. The swing Justice is often described as influential, but that title disappears once the median position shifts.  If you look at past examples, nobody much cares about the opinions of this type of Justice in the long run, with the possible exception of Justice Powell.

2.  The Coalition Builder.  This is the one who is the best at convincing the median Justice.  Justice Brennan fits this model. Filling this role requires a willingness to sacrifice logical consistency to accommodate the views of colleagues, and this can weaken the persuasiveness of the opinion for subsequent cases.  That may not matter, though, if the holding is the critical aspect of the decision.  Law professors may criticize aspects of Baker v. Carr or Plyler v. Doe, but those holdings were very important and are now deeply woven into American life.

3.  The Great Writer.  To a significant extent, judicial influence depends on how quotable the opinions are.  An old line from the Second Circuit about Learned Hand and Augustus Hand said “Quote Learned, but go with Gus.”  In other words, Augustus Hand was a better judge, but Learned was the more influential one.  Justice Robert H. Jackson is one example of this type.

4.  The Visionary.  Some Justices are important because they advance an overarching view of the Constitution that is persuasive over time (whether due to their efforts or not).  These folks often start out in dissent and are not interested in persuading their colleagues.  They are instead interested in convincing law students and the wider public.  They are also not so keen on stare decisis or avoiding unnecessary questions, since they want to put forward their theory as often as they can and brush aside contrary authorities.  John Marshall Harlan the elder is an example of this category.

No Justice fits all of these categories.  Indeed,  John Marshall may be the only one who fits more than one, though you could also put Holmes, Brandeis, and Scalia in that set.


Comparative Criminal Law

I want to bring to your attention this new paper by my colleague Shawn Boyne, who is doing some really fascinating research on the German criminal justice system.  Here is the Abstract:

According to German legal scholar, Claus Roxin, German prosecutors are the ‘most objective civil servants’ in the world. Roxin’s assessment of German prosecution practice reflects the conviction of many German legal scholars that prosecutors in Germany’s inquisitorial system function as second judges dedicated to finding the objective “truth.” In this paper I investigate how prosecutors “translate” the normative duty of objectivity enshrined in the German penal code into observable practices on the ground. I examine prosecutorial decision-making in three sexual assault trials. Sexual assault cases pose unique challenges to prosecutors as well as to the definition of objectivity. Because the crime typically occurs in private, the search for truth often focuses on the testimony of the victim and the suspect. In cases in which the physical evidence is inconclusive and the defendant claims that the victim consented, the focus of the fact finder’s inquiry is the victim’s credibility.

Drawing on transcript and interview data, I propose examing three models or “faces” of prosecutorial “objectivity.” Surprisingly, despite the fact that judges structure the presentation of evidence in German trials, prosecutors play a critical role in “interpreting” the facts presented at trial. In each of the cases examined in this paper, the face of objectivity is constructed through a relational process between the presiding judge and the trail prosecutor. Although many legal scholars maintain that penal code sharply circumscribes prosecutorial discretion in major crime cases in Germany, my research demonstrates that a wide variation exists in the way that individual prosecutors interpret their duty to view the evidence objectively.


State Secrets

The Supreme Court granted certiorari earlier this week in two cases where the “state secret” privilege is an issue.  This may not lead to a clear ruling on the merits or on the scope of that privilege, but that question is now on the table.

The way I think about this is that there are a few ultimate weapons in constitutional law (cue the Death Star music).  One is the suspension of habeas corpus, another is the declaration that a state lacks a republican form of government, and a third is the state secret privilege.  In each instance, the power is awesome, rarely exercised, and not reviewable by courts.

What connects these three examples?  One thought is that they all involve topics where courts are ill-suited to judge whether the power should be exercised.  That could be because there is no useful doctrinal test available, because domestic or national security is involved, or both.  Another thought, though, is that the key point is that these powers are used only in terrible emergencies.  Because they are rarely invoked, we are OK with making them political questions.

What happens, however, is they start getting used more often?  For example, suppose folks in Congress want more regulation of the states and don’t like the Court’s federalism jurisprudence.  Some smarty-pants says, “Hey, let’s start using the Guarantee Clause to get that done.  After all, the Court can’t second-guess us.”  If that occurred with regularity, you can bet that the Court would start reviewing those actions and “normalizing” that extraordinary power.

This is the problem with the way the state secret privilege (or defense) is being used.  It’s become more common — too common to be beyond the reach of the courts anymore.

UPDATE:  Check out this post at Lawfare, which gives a more thorough explanation than I did.  I should have said that the state secret privilege is, for all intents and purposes, a political question.


The Internal Organization of Congress

Nobody seems happy with how Congress works nowadays.  The Senate filibuster gets lots of attention in this respect, but I want to raise another question about how power is wielded in both Houses.

Congress has gone back-and-forth between a system where authority is centralized in the party leadership or held by the various committee chairs.  When Woodrow Wilson wrote about Congressional Government in the 1880s, the committee chairs were the most powerful figures.  Starting in 1890, though, that authority was concentrated in the hands of Thomas “Czar” Reed, the GOP Speaker of the House (Nelson Aldrich played a similar, though more informal, role in the Senate). Around 1910, there was a back-bench rebellion against that structure and power (more-or-less) returned to the committee chairs for decades.  When Newt Gingrich became Speaker in 1995, though, the party leaders took back that authority and it now resides squarely with the Speaker (or the Senate Majority Leader).  (This is condensed version of the history — as LBJ was a very powerful Majority Leader, but you get the general idea).

The question is which system leads to better legislation.  Sure, committee chairs can be petty tyrants, but they are also more likely to bring substantive expertise to the table and be willing to work in a bipartisan fashion.  Ironically, that may be because a lot of what occurs in a committee   Is anyone aware of some good empirical work on this question?


Stick To Mocking Bears

Stephen Colbert’s appearance in character before a House committee today might be the dumbest political stunt since Caligula made his horse a Senator.  It would be as if I went on “The Colbert Report” and just responded to everything he said with, “Yeah, but you’re just a comedian playing a character.  You don’t really believe that, right?”  Congressional Democrats are too busy to schedule a vote on taxes but not too busy to yuck it up in a hearing room, I guess.

Besides, if you’re going to have a comedian testify before Congress, it should clearly be Don Rickles.  He would insult them for an hour and we would all nod in agreement.


What Is A Constitutional Principle?

The debate over whether President Bush’s tax cuts should be extended raises an interesting point about what constitutional law is.  Ordinarily, we think of it in terms of judicial doctrine.  Sometimes we think of it in terms of institutional practices that are textually committed to the other branches.  We usually do not think of the “Constitution,” though, in terms of substantive principles that are binding even though they are not based on the text or on court decisions.

Let me give you some examples.  Andrew Jackson destroyed the Second Bank of the United States.  For the rest of the 19th century, the idea of a central bank was a non-starter even though M’Culloch was not overruled.  This was a more powerful constraint on elected officials than many so-called constitutional principles (such as the Reconstruction Amendments, for instance).  Likewise, the gold standard became a fixed point after William Jennings Bryan’s defeat in 1896.  As I’m trying to explain in the article I’m working on about The Gold Clause Cases, this is why FDR’s decision to take the United States off gold in 1933 proved so difficult for the Justices to sustain (and barely was).

The most important constitutional principle of the Reagan Revolution, I think, is that federal income taxes cannot go up much beyond where they were following the 1981 tax reduction (“Kemp/Roth”).  Obviously that is not something you would take up in a court or teach in a normal con law class.  (Though when I tell my students that the top bracket was 90% during the 1950s, they think I’m joking.)  Nevertheless, it is an incredibly powerful constraint on public policy, reinforced by the popular mandate delivered against Walter Mondale in 1984 when he campaigned on raising taxes.  Despite President Obama’s victory in 2008 and his large (though soon-to-be-nonexistent) congressional majorities, he has never advocated anything other than a marginal increase in tax rates (and might not even end up doing that).  It’s a far cry from the days of “Spend and tax, tax and spend, elect and elect,” which was Harry Hopkins slogan to describe the New Deal.


Two Views of Contract Law

I don’t teach contracts, so perhaps I’m going to say something that’s obvious, but here goes.  When you look at the current problems in the housing market, two distinct views of contract law emerge.  The first comes from the folks who just walked away from their bad mortgages.  Law students are taught pretty early on that a contract is (as Holmes said) a promise to pay damages if you breach and nothing more.  Indeed, the theory of efficient breach holds that society will be better off in many instances if a contract is not performed, because one or both parties can make a better deal.

The other view, though, is that walking away from a mortgage is immoral.  Contract law (and, I think, most of contract theory) finds this position hard to understand.  It’s a bit like asking an economist to explain altruism.  Nevertheless, in the real world many people hold this view and are suffering under crippling debt as a result.  What, if anything, do contract scholars have to say about this?