Author: Gerard Magliocca


The Lead Brief in McDonald v. Chicago

On Monday, the petitioners in the Second Amendment incorporation case filed their merits brief and asked the Court to overrule Slaughterhouse, United States v. Cruikshank, and Presser v. Illinois.  While I agree with their view that the Second Amendment should apply to the States and think the brief’s discussion of the Fourteenth Amendment’s original understanding is excellent, the case analysis is flawed.

As I explain in my forthcoming article, which should be out any day now, Slaughterhouse is not hostile to incorporation.  It only acquired that meaning in Maxwell v. Dow, a 1900 case that reread Slaughterhouse in light of recent political events (i.e., the defeat of William Jennings Bryan). Indeed, the brief just adopts Maxwell’s faulty claim that using the Privileges or Immunities Clause  for incorporation would require the overruling of Slaughterhouse and Cruikshank.  Cruikshank can be distinguished on state action grounds — it’s holding is not inconsistent with incorporation–and Presser is irrelevant as the Second Amendment claim there was not properly pled.  The real case that needs to be overruled (or modified) is Maxwell.

Finally, what does “overruling Slaughterhouse” mean exactly?  Would I now have a constitutional right to be a butcher?


Counterfactual Legal History

About ten years ago a popular series of books called “What If?” — consisting of a series of essays by historians — came out that looked at key turning points in world or military history and tried to describe plausible counterfactuals.  I’ve often thought that asking that question about law would make for a fun conference.  Proposing the idea, though, points up a major difference between lawyers and historians.

Historians (except for the folks who participated in those books) are generally not fans of counterfactuals. In part, that is based on a methodological preference in favor of describing reality rather than speculating. But another reason is that historians tend to be very sensitive about the complexity of events and thus very skeptical about causal arguments of any sort.

Lawyers, by contrast, use counterfactuals all the time.  After all, “but for” causation or “harmless error” is asking a jury or court to figure out alternative paths for litigation.  In part, this is justified because we view causation as a more probable than not question.  A looser standard for causation leads to a greater willingness to think about what might have occurred if the facts were changed.

Once again, this raises the question of what a legal historian should do.  My own work is chock full of counterfactual experiments, which may explain why some historians might not like my scholarship. Straightforward legal history is important and worthwhile, but it seems to me that law (especially constitutional law) is more contingent than we generally think, and thus we need more work exploring lost paths.  There are some terrific examples — Risa Goluboff’s book on “The Lost History of Civil Rights” comes to mind — but that’s not enough.


A Legal Historian’s Dilemma

This weekend I attended the Annual Meeting of the American Society of Legal History, which is always a great event.  The best line came from Jack Rakove, who said that the search for original understanding in constitutional law is increasingly an inquiry into what “Joe the Ploughman” thought in 1787 or 1791.

A legal historian (a role I play on a semi-regular basis) faces a problem that is common to folks who straddle different disciplines.  Unlike real historians, there is an expectation that legal historians should make their work relevant for current issues.  When I present papers or try to make them more marketable for law reviews, there is always a temptation — that I don’t always resist — to have a final section that tries to draw lessons from the history and apply them to current doctrine.  If you don’t do that, then lawyers will often ask, “What’s the point of this?”  If you do take this on, though, then those with a history training will say that you are doing law office history.  I’ve never come up with a great solution to this problem,

I’ll talk about a related issue — the use of counterfactual history — in a post tomorrow.


The Thirteenth Amendment and Hate Crimes

A few weeks ago the President signed the Matthew Shepard Hate Crimes Prevention Act into law.  The Office of Legal Counsel issued an opinion concluding that the Act is constitutional under Section Two of the Thirteenth Amendment, relying heavily on the Second Circuit’s analysis in United States v. Nelson, 277 F.3d 164 (2d Cir. 2002).

This could be a significant doctrinal development.  The OLC’s analysis, of course, was driven by concern about whether a federal hate crimes bill would be vulnerable under the Supreme Court’s holding in United States v. Morrison. There’s more going on here though. The Thirteenth Amendment, unlike the Fourteenth, does not have a state action requirement.  To the extent that lawyers start using the Thirteenth to sustain congressional action on racial discrimination, that would render Morrison a dead letter.  This line of thought was rejected in the Civil Rights Cases (over Justice Harlan’s dissent), but may be making a comeback.


Oral Argument in Bilski

Here are some observations about the oral argument today in Bilski, which dealt with the scope of patentable subject matter and (potentially) the viability of business method and software patents.

1.  The Justices seemed to reject the argument that Section 101 should be read broadly since the novelty and nonobviousness requirements were sufficient to prevent things like “a method of speed dating” from being patented.  Counsel for Bilski kept responding to the Court’s hypotheticals by saying that the proposed processes could “potentially” be patentable if they met the other statutory requirements.  Nobody embraced that view.  I think this is a good sign, because in practice 102 and 103 haven’t worked well as gatekeepers.

2.  Unfortunately, the suggestions by the Justices about how to limit Section 101 were not well thought out. Declaring that 101 “excludes business methods” or includes only “technology” will just create a decade of uncertainty as people try to figure out what those categories mean.  What we need from the Court is a set of factors that can guide the analysis — my own views on that are here.

3.  The viability of State Street Bank is in doubt.  At least two Justices (Kennedy and Stevens) seemed unclear about whether State Street should survive, even though the Government took the position that the case was correctly decided.  I don’t think that the Court will take down software patents in this case, but I think the odds went from about 5% to about 20%.


In Memoriam

Mary Mitchell, a beloved member of the Indiana University — Indianapolis faculty, passed away today after a sudden illness.  Mary was a wonderful teacher who cared deeply about her students and fought passionately for her beliefs during her three decades at the law school.  We are all devastated by this loss.


AALS Hiring Conference

I’ll be in DC (mostly in a hotel room) on Friday and Saturday as chair of IU-Indy’s hiring committee.  If any regular readers of CoOp will be at the conference, email me and perhaps we can find some time to meet up.


The Return of Penal Colonies

120px-Australia_mapaOn Friday, attorneys for six of the Uighurs held in Guantanamo Bay announced that they have been transferred to live on the island of Palau.  (Pitcairn Island must have been unavailable). Perhaps all of the detainees who are the parties in Kiyemba (just taken on certiorari by the Supreme Court) will be resettled to render the case moot.

This ad-hoc way of dealing with the detainee issue strikes me as problematic.  In effect, it allows the Executive Branch unfettered discretion to establish penal colonies around the world and place curbs on the post-release activities of detainees without any due process whatsoever.  While I’m sure most of the detainees would prefer some freedom on some random island over prison, I think that Congress needs to take a look at this practice and consider establishing some guidelines.


Health Care Reform in Political Time

120px-PharmacistsMortar.svgAs the health care bill crawls towards the Senate floor, I’d like to paraphrase my favorite Simpsons episode and say that I look forward to an orderly debate that will eliminate the need for a violent bloodbath. See Kang v. Kodos (1996).

The health case issue is playing out along the lines that I sketched out in my work on generational conflict in constitutional law.  Each new movement eventually coalesces or or is identified  with a major statutory initiative (the repeal of the Judiciary Act of 1801, the Indian Removal Act of 1830, the National Recovery Act of 1933, the Civil Rights Act of 1964, the Reagan Tax Cuts of 1981). That transformative effort is almost always met by intense resistance from the political branches or from the Supreme Court (Worcester v. Georgia, Schechter Poultry, the filibuster of the 1964 Act).  This then leads both sides to engage in extraordinary procedural innovations to advance their agenda (judicial review, impeachment of Justices, Censure of the President, Court-packing).

Health care is now the signature measure of the Obama Administration.  While the fight against the bill is still ongoing, the town halls during August definitely raised the political temperature far above a typical piece of legislation.  (The length of the debate is another sign of this.)  Now I’m waiting for the unusual procedures to emerge.  Putting the bill through the Senate via reconciliation is the most likely candidate, but then again the innovation wouldn’t be extraordinary if I could easily predict what it will be.


Flagrant Age Discrimination at Indiana University

I am not in the habit of criticizing my employer, but here goes.  Indiana University has a policy holding that the deans of individual schools on campus must retire at 65.  In the past, this policy was rarely enforced, but the current President — Michael McRobbie — has decided to enforce the policy strictly.  This mindless age discrimination now threatens to force out my dean (who is doing a fine job) despite assurances given when he was hired three years ago that he would not be subject to this age limit.

I think that a serious inquiry should be undertaken to determine whether President McRobbie and IU are in violation of the ADEA.  Even if that is not the case, I think the President’s behavior is shameful and sends a clear message to campus that senior faculty are not welcome.