Author: Gerard Magliocca


Negligent Corpse Mishandling

113px-The_death.svgOne of my favorite exotic torts (especially as we reach the end of the semester) is the negligent mishandling of corpses.  This cause of action constitutes an exception to the principle that recovery for the negligent infliction of emotional distress is limited to those who observe an accident in which someone close to them is injured or killed. Under the Restatement (Second):  “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.”  Classic examples would include spilling the body from the casket or putting the wrong one in the grave.

Of course, one could say that this is a claim by the deceased for their interest in the proper disposition of their remains that is being brought by the estate.  But it probably makes more sense to think about this as an emotional distress claim of the living that is just one step removed from witnessing a death.


KSM on Trial

The decision to try some of the ringleaders of 9/11 in the District Court for the Southern District of New York raises many interesting questions.  Here are a few below the fold:

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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.