Author: Gerard Magliocca


Common Exam Mistakes

I’m in the middle of grading my exams, and thus the question of what separates the good ones from the bad ones is fresh in my mind.  Some exam pitfalls are obvious (poor writing, getting cases mixed up, not reading the question carefully, bad time management).  But there are some other recurring problems that deserve more careful attention.

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Fun Cases You’ve Never Heard of — Part II

120px-Jolly-RogerUnited States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818) is almost certainly the best case on statutory interpretation that you can use in the classroom.  If you’ve never heard of it, that’s because it is a maritime case about pirates.

Three Americans were convicted of piracy on the high seas.  A federal law provided for capital punishment where someone on the high seas committed “murder or robbery, or any other offense, which, if committed within the body of the country, would, by the laws of the United States, be punishable with death.”  The defendants argued that their crime was a robbery (no murder was involved) and that robbery was not a capital crime on land.  Thus, they could not be sentenced to death.

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The Return of Glass-Steagall

Mel Urofsky’s new biography of Louis Brandeis is a timely reminder of the Justice’s mantra about “the curse of bigness.”  Following the Panic of 2008, there was much discussion about how to deal with financial institutions that are too big to fail.  One possible solution is simple — make sure that no bank or related entity gets too big in the first place.

This week Congress took the first step down that road by introducing legislation that would restore the p Glass-Steagall Act of 1932.  Glass-Steagall, inter alia, barred commercial banks from owning brokerages. For example, Bank of America could not own Merrill Lynch as it now does if the Act were in force.  Glass-Steagall was repealed in 1999 by a bipartisan coalition and the repeal was signed by President Clinton.

While there were good arguments for this move at the time, that was almost certainly a mistake.  After all, the banking system functioned pretty well from 1932 to 1999.  Within just a few years of Glass-Steagall’s repeal, things went haywire.  Correlation is not causation, of course.  But I am hard-pressed to identify any public benefit that came from repealing the Act.  We know it worked to reduce financial risk after the last great panic (1929).  Why shouldn’t it be brought back now?


Article Five, the Spending Clause, and Federalism

Consider the following hypothetical.  Congress passes a constitutional amendment and sends it to the States for ratification.  The amendment does not get the support of three-fourths of the states as required by Article Five.  Congress responds by passing a law that refuses to appropriate federal funds to any state that has not ratified the amendment in an attempt to coerce them to do so.  One of these holdout states sues claiming that this violates the Spending Clause and the Tenth Amendment.

Would this claim succeed?  The Supreme Court held, in Coleman v. Miller, that the Article Five process is a political question (though not necessarily in all circumstances).  On the other hand, the Spending Clause cases hold that there must be a rational relationship between the conditions placed on federal funds and the funds themselves.  From a federalism perspective, applying pressure to the States would seem like a violation of their sovereign role in making textual changes.  Yet Congress did something similar during Reconstruction when it placed recalcitrant Southern states under military rule until they ratified the 14th Amendment.  How should all of this be reconciled?


Filibuster Reform and the House of Lords

120px-James_Stewart_in_Mr._Smith_Goes_to_Washington_trailer_2_crop.JPGFrustration with the health care debate is reaching a crescendo.  If you turn on C-Span 2 right now, you’ll see the Senate clerk reading an amendment to the bill in its entirety. That will go on all day (it’s 750 pages long) because Senator Tom Coburn (R-OK) refused to give unanimous consent to treating the amendment as read. Filibuster old school style!

Senator Tom Harkin (D-IA) wants to introduce an amendment to the rules that would transform the filibuster from an absolute veto into a suspensive one.  In other words, the refusal to invoke cloture could only delay a final vote on legislation for, say, a month or two in a given Congress.  I’m not keen on this with respect to legislation (though I think it makes sense for the executive calender, as I explained in a prior post).  It seems to me that major legislation such as health care really ought to have more than a bare majority in each house of Congress (whether by norm or by rule).

Nevertheless, there is a parallel with what happened to the House of Lords in Britain.  The Lords used to be equal to the House of Commons.  The Parliament Act of 1911, though, provided that a bill could only be delayed by the Lords for two years within a given Parliament (i.e., the House of Commons could reenact a bill and it would become law without the assent of the Lords if a general election did not intervene).  Later that delaying period was reduced to one year. It is still possible, however, for the Lords to kill a bill at the end of a parliamentary session by doing nothing.  Perhaps the filibuster will evolve in a similar way.


Who is Tiger Woods?

I’m understandably reluctant to post about privacy when your co-blogger is the nation’s leading expert on that topic.  Nevertheless, there is something about the Tiger Woods mess that warrants a comment.

I think that the best observation about privacy comes from Richard Posner, who said (in his book about the Clinton impeachment) that part of what makes information private is its prejudicial quality.  In other words, people think it tells them a lot more about someone than it really does.  And as a result, they tend to focus on that to the exclusion of other, perhaps more relevant, facts.

Sex is an obvious example.  The theory of why knowing about that would tell you something special about the inner life of another is straightforward enough.  My experience, though, tells me that there is almost no correlation between someone’s sex life and the rest of their personality.  Of course, in Tiger’s case we don’t really know much about his personality, so it’s hard to make that judgment about him.  That won’t stop people from trying though.


Assumption of Risk and Football

120px-Wilson_American_footballThe NCAA headquarters is across the street from my school.  In the lobby, you will find a life-size sculpture of the “flying wedge,” which was a popular football play at the turn of the 20th century.  Basically, all of the offensive linemen linked arms and the running back just followed behind them.  It worked really well, except that lots of linebackers ended up with broken necks after being hit by the full force of many men. Indeed, there were so many fatalities caused by the flying wedge that college football was on the verge of being abolished.  That’s why the NCAA was formed.  Teddy Roosevelt, convinced that games like football were necessary to inspire manly virtues, got a group of leading college presidents (including Woodrow Wilson at Princeton) together and urged them to stave off these calls by forming an athletic association that would promulgate limited safety rules (such as banning the flying wedge).

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Canary in the Coal Mine

DownloadedFileAs the health care debate drags on in the Senate, it occurs to me that the Supreme Court’s Commerce Clause for this term, United States v. Comstock, is becoming more and more important.  Why?  Because health care reform, if enacted in something like its present form, will almost certainly face a constitutional challenge claiming that the individual mandate exceeds Congress’ commerce power.  Since this issue is already being discussed in op-eds and on blogs, at least some Justices must be aware that the question could be before them in the next few years.

Comstock may provide clues about the Court’s thinking on this, both in oral argument and in the opinions that follow.  Many Justices try to anticipate future controversies and use relatively innocuous opinions to plant seeds that will support a future line or argument that they want to make.  Thus, we need to pay close attention to what gets said in Comstock, not just on the holding related to civil commitment.


Interpretive Fictions in Constitutional Law

One issue that I’ve been thinking about lately — in part because of a presentation that I gave at a conference in October — is the use of legal fictions in constitutional interpretation.  By a fiction, I mean something that everybody knows is not true but says anyway for some jurisprudential purpose.  Many famous scholars (e.g., Bentham, Maine, and Fuller) have talked about the use and abuse of fictions at common law, but there is comparatively little discussion of those issues in constitutional law.  Let’s consider some candidates:

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