Author: Gerard Magliocca


Using “Foreign” Law in Constitutional Interpretation

It is not breaking news to note that a significant debate is underway about whether foreign law should be used to read our Constitution.  Separating this jurisprudential issue from the substantive controversies that often accompany the debate (on capital punishment, for example) is difficult and often breaks down into a liberal/conservative smackdown.  So I’d like to suggest a possible line of neutral research.  This might be a good student note topic.

Pick a pair of U.S. states (or multiple pairs) that differ widely in their politics.  (Say Mississippi and Vermont, or Utah and Hawaii).  Then look at each State Supreme Court’s cases interpreting its own Constitution.  How often do those cases cite the “foreign law” from the ideologically opposed state?

This would be helpful information.  Nobody would argue that it is inappropriate for a state court to cite another state court in a constitutional context because we are one nation.  But it would be interesting to learn whether this practice is common.  Critics of citing foreign law in the U.S. Supreme Court argue that the practice is wrong in part because our citizens did not consent to the processes that produce those decisions and often have different values from a country like France.  The same argument, though, could be made if the Texas Supreme Court, for example, cites a decision from Maine.  (Note that this study would work best in states where amending the constitution is relatively hard.)  If states like Texas routinely cite states like Vermont in constitutional cases (not garden-variety common law cases), then the argument against doing so at the federal level would be undermined.  And vice versa.


When Facts Are Really Interpretations

Last week I was at the FDR Library in Hyde Park to continue my research on the link between the Child Labor Amendment and the Crisis of 1937, which I’ve blogged about previously.  Doing work in archives is always fun. You just feel more scholarly in these places (no more so than in the Reading Room at the Library of Congress.) Plus, old depositories are quirky.  They tend, for example, to be fanatically anti-pen. Pens — as opposed to pencils — can leave marks on the documents.  Presidential libraries are especially strange because they are memorials for their guy.  When I was at the Nixon Library a few years ago, the Watergate section was “Closed for Renovation,” which I found hysterical.  At the FDR Library, the term of choice for the President’s 1937 proposal is “judicial reform,” not “Court-packing.”

So what did I learn during my visit?

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Is “Coke” a Generic Mark?

120px-Coca-Cola_logo.svgHere’s an issue that bugs me every time I teach genericism in trademark law.  As you may know, if a brand name becomes the word of choice to describe the actual product (e.g., aspirin or thermos) then the trademark rights lapse because allowing one firm to hold a monopoly over such a word would put competitors at a huge disadvantage.

I wonder why “Coke,” which is a registered trademark of Coca-Cola, has never been challenged on this basis. Many people use “Coke” to mean “cola,” even though there are other kinds of cola (e.g. Pepsi and R.C.). Indeed, in some parts of the country “Coke” is commonly used to mean “soda.”  And how often do you find yourself at a restaurant asking for a “Coke,” being asked “Is Pepsi OK?” and answering “Fine, I don’t care.”  This would suggest that people think of “Coke” and “cola” as interchangeable

Now obviously there are people who do express a strong preference for Coke and swear up and down that it’s better than other kinds of cola.  The question is how many people are in this camp and is that enough to justify giving “Coke” trademark protection.  Anyone know of any empirical data on this?


The Proposed Health Care Individual Mandate

There is a lively discussion underway (on Volokh and in some op-eds) about whether a federal statute requiring all Americans to buy health insurance would be constitutional under the Commerce Clause.  I’m interested in this question because I’m now revising a draft paper on the “30,ooo foot” view of the Obama Administration in political time.

One feature of prior constitutional generations (or new party systems) in their initial phase is that there is often a clash between a rising movement and the Supreme Court over a key demand of that movement. Jackson and Marshall fought over the Cherokee Removal.  Dred Scott attacked the Republican Party over slavery in the territories.  And the Old Court in the 1930s went after the NRA.  It is pretty clear that health care is the crucial issue for President Obama.  The obvious question is how could the Court challenge that initiative (if enacted) consistent with existing doctrine?

My faculty colleague, David Orentlicher, and I batted around the following idea today.  Congress clearly has broad authority to prohibit harmful commercial transactions.  It also has similar power to regulate transactions that occur. But does it follow that Congress can require people to engage in a commercial transaction that they do not want  to undertake?  (Like buying health insurance).  I’m not so sure.  Are there any precedents for this?  I don’t think so. Conscription is a possibility, but that’s a weak analogy.  Nothing else comes to mind.  Can you think of any examples of federally-mandated commerce?  (Obviously, if Congress just encourages people to buy insurance through tax breaks, then this analysis would not apply.)

Of course, nothing in the “substantial effects” test distinguishes between prohibition, regulation, and requirement.  I’m just saying that such a distinction could be made and would be plausible.


Residential Integration

I want to draw your attention to this new book on The Integration Debate:  Competing Futures for American Cities, which explores racial segregation in housing and discusses various options for addressing the issue. One of the chapters was written by my colleague Florence Roisman, who is a towering figure in Affordable Housing Law (though in person, she’s rather short).  Part of the proceeds go to the National Fair Housing Alliance and the John Marshall Law School Fair Housing Legal Support Center in Chicago.


Misappropriation and William Randolph Hearst

85px-William_Randolph_Hearst_cph_3a49373While reading a biography of Hearst, I came across something I did not know about International News Service v. Associated Press, the 1918 Supreme Court decision that established the misappropriation doctrine.  The case was brought by AP, which claimed that INS (a rival wire service) was reprinting its news reports about the fighting during World War I verbatim and without attribution.  The Court held that this behavior was unlawful because the AP had “quasi-property” rights in their dispatches.  When I teach this case, the usual takeaway is that INS was “free-riding” on the AP because it was cheaper to borrow than to have their own correspondents in Europe to cover the war.

Here’s the missing part.  INS was Hearst’s wire service, and Hearst was strongly anti-British and opposed America’s entry into the War.  Eventually, the British Government kicked his reporters out of the country because they were deemed hostile propagandists.  Thus, Hearst could not cover the war without borrowing from the AP.  A little more imagination could lead to the conclusion that the Court’s holding in INS was a form of punishment for Hearst’s political views — a kind of wartime censorship — but I do not yet have any direct evidence for that interpretation.


Separation of Parties?

Three years ago Rick Pildes and Daryl Levinson wrote a terrific piece in the Harvard Law Review called “Separation of Parties, Not Powers.”  They argued there that separation of powers did not work the way that Madison envisioned because politicians identify more with their party than with their branch.  So when the White House and Congress are controlled by different parties, they check each other vigorously. When we have unified government, though, Congress more or less rolls over, plays dead, and lets the Executive Branch have its way.  This is a powerful insight that led Pildes and Levinson to make some thoughtful suggestions about the need to strengthen the rights of the minority party in Congress and about how the courts should review separation-of-powers claims differently depending on whether the challenged statute was produced under divided or unified government.  But there is a problem with their theory that the health care debate is exposing. Read More


Rediscovering the Fourteenth Amendment

I find that blogging is useful for three things.  First, you can try out new ideas and see how people react. Second, you can react to current events in real time.  Third, you can talk about old ideas that did not get enough attention the first time around.  (Call this “Broadway revival” blogging.)

In that spirit, let me mention this paper of mine from a few years on the relationship between Jackson’s removal of the Cherokees from Georgia and the Fourteenth Amendment.  The piece argues that part of the original understanding of the Amendment was shaped by its framers support for Native American rights and disgust at the “Trail of Tears.”  For example, John Bingham cited Worcester v. Georgia more than once as a benchmark for interpreting Section One of the Amendment.  Obviously, there were distinctions made between African-Americans and Native Americans in that text, as tribes with treaty relations with the United States were excluded from birthright citizenship under its “subject to the jurisdiction” clause. Nevertheless, there are important interpretive resources to be found in the law and practice concerning Native Americans leading up to 1868 (on the antidiscrimination principle, positive economic rights, and more traditional individual rights).  After Brown, the legal community concluded that the Fourteenth Amendment’s history was basically unhelpful.  That is a mistake that more scholars should examine.


Happy Constitution Day!

Constitution_Pg1of4_AC_icon_cut“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.  And what is this liberty which must lie in the hearts of men and women?  It is not the ruthless, the unbridled will; it is not the freedom to do as one likes.  This is the denial of liberty and leads straight to its overthrow.  A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.

What, then, is the spirit of liberty?  I cannot define it; I can only tell you my own faith.  The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten — that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”

Learned Hand — 1944