Author: Gerard Magliocca


Constitutional Escalation

With the GOP victory in Massachusetts now beyond doubt, let’s try to figure out where we are.  In my work on the “generational cycle” in constitutional law, we see the following pattern:

1.  The exhaustion and collapse of the ruling party regime. (Fratricidal Federalists, John Quincy Adams, fracture of the Democracy in 1860, Grover Cleveland, Herbert Hoover, Jimmy Carter, George W. Bush).

2.  A realigning election (1800, 1828, 1860, 1896, 1932, 1964, 1980, 2008).

3.  A signature statutory initiative from the new political movement (Repeal of the Judiciary Act of 1801, the Indian Removal Act of 1830, the National Industrial Recovery Act, the 1981 Reagan Tax Cuts).

4.  Intense resistance to that initiative.

5.  An escalation of reform efforts to overcome that resistance.

Not every generation unfolds in this order.  During the Populist period, for instance, the critical election came after a great deal of preliminary jousting.  Ditto for the Republicans in the 1850s.

We are now approaching stage #5.  In other words, the President will have to decide whether he wants to scale back the health care bill — his signature proposal — in the face of these setbacks, or play hardball.

History suggests that hardball is coming.  And this probably means an expansive use of the reconciliation rules in the Senate to avoid a filibuster.  Previous constitutional generations, who always end up in this jam sooner or later, suddenly become more creative in their reading of legislative or executive precedent.


Law and Democracy Symposium

The Indiana Law Review, with the help of my colleague Mike Pitts, will be holding an all-star symposium on election law issues here at the IU–Indianapolis Law School on April 8-9.  Heather Gerken will be giving the keynote address, while others expected to attend include Nate Persily and Michael Kang.


Black Swan Alert

120px-CygnusAtratus_2259Jack Balkin has a post outlining his view that the individual health care mandate is constitutional.  He closes with this:

“I assume that as soon as the health reform bill is passed, people will challenge the individual mandate in court. I doubt these challenges will succeed. But stranger things have happened in constitutional law, and I’ve seen some of them in the past twenty-five years I have been teaching in this area. I will, however, say this: The Supreme Court would have to significantly alter its post-New Deal doctrines to strike this tax down. It could not just apply the law as it currently exists; it would have to change the law markedly. At present, I do not think the votes are there for such a constitutional revolution.”

The problem is that Balkin provides no explanation about why or when “stranger things happen” in constitutional law.  This sort of improbable event — a black swan — is treated as random.  That is simply wrong.  A central idea of my scholarship, both in my book about Jacksonian Democracy  (see the Amazon ad to the right) and my forthcoming book about Populism, is that these “preemptive opinions” follow a pattern. First, they are clustered around brief transition periods that follow a party realignment.  (In my view the 2008 election was such an event, though clearly that is a contestable assumption.)  Second, these cases share a distinctive signature.  Worcester v. Georgia, Dred Scott, Pollock, and Schechter Poultry are similar even though they are widely separated in time and dealt with very different questions.  (Indeed, as I said in a previous post, Pollock is the most relevant opinion for thinking about the health care mandate, both because of its political context and its discussion of direct taxes.  If you substitute “income taxes” for “individual mandate” in Balkin’s passage above, his comment is exactly what a constitutional expert would have said in 1895 about the challenge to the 1894 income tax.  How did that work out?)

Just to be clear, I am not saying that it is a certain that the Court will strike down the individual mandate. What I am saying that most scholars are looking at the wrong data set to make this prediction.  Instead of looking at all constitutional cases or all Commerce Clause cases, they should look at the smaller sample of cases at a generational inflection point that involve a major initiative of the new movement. When I look at that category, the odds of invalidation are more probable than not.


Race Against the Clock in Massachusetts

The other day I pointed out that if Scott Brown(R) wins the Massachusetts Senate special election on Tuesday, that could unleash all sorts of constitutional mayhem.  For example, Democrats could delay the seating of the new Republican Senator until the health care bill passes (post-conference) though both Houses.  So I decided to look into state law to see what could happen.

First, the winner of Tuesday’s race will not be certified as the winner for a month–Feb. 20 is the target date.  That’s because the counties have two weeks to report their results to the state, and there is extra time for the counting of overseas and military ballots.

Second, a recount (yipes!) is available if the margin of victory is within .5%.  So if Brown were to win in a really close race, we could have another Al Franken/Norm Coleman situation, which would allow interim Senator Paul Kirk(D) to stay in DC for months.

Third, the Senate could delay the seating of a certified winner, though that would be really extraordinary. Still, if the majority had to do that for a few days, maybe that’s not so impossible to imagine.

Accordingly, if Brown wins and there is no recount, look for Democrats to step on the gas pedal and get the health care bill passed by Feb. 20 with a lame-duck vote from Massachusetts.  That will probably get folks fired up and gives critics of the individual health care mandate an additional club to use if the Act is challenged in the courts.

UPDATE:  I now see other articles stating that the certification process (assuming that there is no recount) will be done by Jan. 29.  If that is true, then it’s hard to see how the bill could be passed before Brown takes his seat — if he wins.


Property Outlaws

I want to flag a terrific new book by Eduardo Penalver and Sonia Kaytal called Property Outlaws: How Squatters, Pirates, and Protestors Improve the Law of Ownership.  In the midst of record foreclosures, their work is a must-read.  Here is the publisher’s description.

Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

The authors employ wide-ranging examples of the behaviors of “property outlaws”—the trespasser, squatter, pirate, or file-sharer—to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of “property outlaws” and legal innovation should be cultivated in order to maintain this avenue of legal reform.


The Massachusetts Senate Race

Constitutional law is often the product of accidents, as some of the “What If?” counterfactuals that I’ve talked about in earlier posts point out.  We may have one of these flukes on our hands soon.

A special election will be held in Massachusetts for the seat vacated by Ted Kennedy and filled on an interim basis by Paul Kirk(D).  Suppose that the Republican wins that race (the polls are reasonably close). Then there would be only 59 Democrats (and Democrat/Independents) in the Senate, not the 60 necessary to get cloture.  What would happen to the health care bill in that scenario?

There are two relatively straightforward options.  One is that the conference on the bill could be completed before the special election is held.  Another would be that the House just passes the Senate version of the bill, thus negating the need for another Senate vote.

If neither of those occur, however, then the possibility of wacky (or unconventional) constitutional action becomes a real possibility.  What does state law say about when the interim Senator’s term ends?  Is it by a date certain after the special election, or is upon the certification of a successor?  If the latter is the case, then that could allow the Governor (Deval Patrick(D)) or a Senate majority to delay certification until the Senate can pass health care.

Assuming that this does not happen, what then?  Would the Democratic majority have to bargain with Olympia Snowe to get cloture?  Or would the lack of a sixtieth Senator be the trigger for an effort to use the reconciliation process so that only a majority would be required to pass the bill?  Put another way. could the unintended consequence of the Massachusetts election be a constitutional showdown over the Senate rules?  (It’s worth noting that reopening negotiations to get sixty votes would take time, and the closer we get to the midterm elections the harder it will be to strike a deal.)


Arrr . . . matey!

120px-Sperm_whale1bYesterday I became the Chair of the AALS Section on Admiralty and Maritime Law.  It was a bitter, hard-fought campaign in which I was the only volunteer.  So my main task is to put together a panel for the 2011 AALS Conference in San Francisco.

My idea for a panel builds on a post that I did wrote way back in April, which talked about what scholars in other fields can learn from Admiralty.  What I would like to do is get a contracts person, a torts person, and a corporate law person to talk about the relevant distinctions between maritime law and land-based doctrine.  I think that could be a fun discussion for lots of folks.  Please email me if you’re interested in participating.


What Did We Learn Over the Holidays?

1.  If the system works, Janet Napolitano will never be on the Supreme Court.

2.  Terrorists suffer from the same irrational focus on airplanes as the rest of us.  Part of the fun of teaching Torts is getting students to think about risk by pointing out that driving is more dangerous than flying, and then asking them why most people don’t think that’s true.  (Plane crashes are large one-time events, car crashes are low-level and frequent; plane crashes remove control from the accident victim, people feel safer driving themselves even if they are bad at it; more people are used to driving than flying, etc.)

Terrorists apparently think that attacking planes is better than bombing trains, buses, or subways, even though airports have lots of security and those other modes of transportation don’t.  Now that could be a rational response to an irrational risk assessment (“If they think planes are really critical, who are we to argue with them?”) but I suspect that it actually reflects a basic misconception about the costs and benefits involved.  (The train bombings in Spain, for example, were pretty successful from Al-Qaeda’s perspective and probably easier to pull off.  That hasn’t been repeated here.)

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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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