Author: Gerard Magliocca


Semantic or Not?

Here’s a question that I’ve wondered about for a long time.  If you ask people what party Hillary Clinton belongs to, many say “the Democratic Party.”  Many others, though, say “the Democrat Party.”  Why is that?  Typically, I think that only Republicans use the latter term.  Is there some purpose there, such as denying that Democrats have a monopoly on being democratic?  Or is more like a dialect?


State Law and Patent Trolls

I want to draw your attention to a significant new article entitled “Patent Trolls and Preemption” that was just published in Virginia Law Review.  Many states have enacted statutes that attempt to limit what patent owners (or alleged owners) can demand by invoking the principles of common-law fraud or misrepresentation.  An obvious question about these statutes is are they preempted by federal law?  The test for preemption used by the Federal Circuit would seem to say yes, but perhaps that test is too restrictive.  The article explores this question in depth as the court challenges to these statutes begin.


Madison’s Notes on the Federal Convention

I can’t recall being as excited to read a new book as I am about starting Mary Sarah Bilder’s Madison’s Hand: Revising the Constitutional Convention.  The book focuses on the fact that Madison revised his records of the convention’s debates until his death.  What did he change, why did he make these changes, and to what extent does this call into question the reliability of this record? All very important questions.  I wish I’d thought about asking them.


Suing the Lottery

Illinois is in the throes of a budget crisis, and one of the means that the state is using to save money is delaying lottery payouts. At least one lottery winner is suing over this, which leads me to wonder

  1. Do lottery statutes typically mandate that eligible ticket holders and winners get a payout, or do they provide some discretion to the state not to pay?
  2. Can Illinois be sued for damages for a payout delay or does sovereign immunity bar any action?
  3. If a damage suit is possible, is the proper remedy for a payout delay merely interest, or there is something else that would be required given the tax consequences of a delay?

Judge Richard J. Cardamone

I wanted to note the passing of Judge Cardamone, who was on the Second Circuit when I was a law clerk.  This NYT obituary gives an account of his life and career, and includes this quote from him about judging:

“How one wishes to decide a case comes lightly to mind, on a wing. But often, how one must decide it comes arduously, weighed down by somber thought.”

I fondly recall having lunch with him, my judge, and my co-clerks, and we praised a recent dissent that he’d written.  Judge Cardamone replied ruefully that “a dissent just means that you failed to persuade your colleagues,” which is a wonderful way of describing collegiality.

Finally, I’ll note that he had ten children!  That’s an achievement onto itself.


Justice Breyer and International Copyright

Justice Breyer has a new book out that discusses the importance of international and comparative law to the Court’s work. I find this ironic given Justice Breyer’s position in several of the Court’s major copyright decisions.  In Eldred v. Ashcroft (2003), Golan v. Holder (2012), and Kirtsaeng v. Wiley (2013), Breyer’s analysis consistently discounted international or comparative factors in either assessing the constitutionality of a copyright statute or interpreting such a statute.  To wit:

In Eldred, Justice Breyer dissented and argued that Congress’s extension of the copyright term for existing works was invalid.  He took this view in spite of the fact that Congress took this step (in part) to match a decision by the European Union on the appropriate length of copyrights.

In Golan, Justice Breyer dissented and argued that Congress could not constitutionally remove works from the public domain.  He took that position in spite of the fact that Congress took this step to bring the United States into compliance with the Berne Convention.

Finally, in Kirtseang Justice Breyer authoring the Court’s opinion construing the Copyright Act as providing that the first sale doctrine applied to copies of a copyrighted work made abroad.  He did this in spite of the assertion (made in dissent by Justice Ginsburg) that the Court’s interpretation contradicted the United States’s position in global copyright negotiations on “international exhaustion.”

Now all of these positions might be perfectly justified.  (Indeed, I think that Breyer was right in Golan, though wrong in Eldred.) I just think it shows that “taking certain considerations into account” says little about how cases should be resolved.


A Possible Lawsuit

I want to solicit opinions on the following constitutional question that I am thinking of litigating.

Indiana bans the sale of alcohol in grocery stores on Sundays.  This is an old statute and at this point we are either the only state or one of the few that has such a law.  Every year noises are made in the Legislature about repealing this Sunday alcohol ban, but so far nothing has happened.

It seems to me that this is a classic (if rare) example of an irrational statute that should be declared unconstitutional.  I find it hard to come up with any logical rationale for this.  It’s not as if all alcohol sales are banned here on Sundays (restaurants can sell drinks and so can the stadium where the Indianapolis Colts play).  Why, then, is a distinction made between these vendors and grocery stores?  More broadly, what is the purpose served by banning alcohol sales on a Sunday that isn’t purely religious, which I assume was the original idea?

I would invite groups that want to subject economic regulation to judicial scrutiny to consider litigating this issue.  I’m toying with the idea of doing it myself (largely because I think it would be fun and that I can win), but perhaps I’m missing something.

UPDATE:  Michael Risch correctly points out in a comment that the Court upheld various “Sunday” laws in the 1960s. I would submit, though, that those cases are distinguishable because Indiana’s decision to restrict the sale of one type of good through one type of retail channel cannot survive rational basis review.


State Sovereign Immunity in Another State

In looking over the cases that the Court will be hearing in the next few months, one notable (if less sexy) one is Franchise Tax Board of California v. Hyatt.  Hyatt presents the question of whether a state can deny sovereign immunity to other states in circumstances where the home state gets sovereign immunity in its state courts.  One of the Questions Presented asks the Court to overrule Nevada v. Hall, a 1979 decision holding that states did not have sovereign immunity in the courts of other states.

Hall would appear to be on thin ice.  It is inconsistent with the line of decisions that began in 1996 with Seminole Tribe and give the states broad sovereign immunity under the 11th Amendment. Justice William Rehnquist, who wrote Seminole Tribe as the Chief Justice, dissented in Hall on grounds similar to what he later turned into law on related issues.

If the Court does overrule Hall, it will be interesting to see whether Justices Sotomayor and Kagan decide to embrace Seminole Tribe under stare decisis.  One can expect Justices Ginsburg and Breyer, who dissented in Seminole Tribe, to adhere to the view that this entire line of authority is wrongheaded.  The new Justices have not opined on this question, though, and thus it is possible that Hyatt will reveal whether Seminole Tribe has become settled law or not.


Hoyt v. Florida Oral Argument

I mentioned in a prior post that I’m listening to the Supreme Court oral arguments that are now available on the Oyez Project at Chicago-Kent.  One that was high on my list to listen to was Hoyt v. Florida, a 1961 decision that upheld a Florida law that only made jury service mandatory for men.  Hoyt was convicted of killing her husband by an all-male jury, on her argument on appeal was that Florida’s statute, which said that women had to affirmatively volunteer to be in the venire, denied her a fair trial.  The Court rejected this challenge unanimously.

The argument is fascinating because it contains a mix of modern gender discrimination arguments and traditional stereotypes.  Hoyt’s attorney made some claims that sound familiar (women suffered from broad discrimination, we would be skeptical of a man convicted by an all-female jury for killing his wife), but he also made the curious choice to say that his co-counsel who wrote most of the brief was a woman but he was arguing the case.  He also was more or less forced to rely on gender stereotypes (e.g., women are more emotional) to argue why women should be on juries.

Anyone, it’s well worth a listen.


John W. Davis

183px-John_William_DavisIn thinking about other possible subjects for a compelling biography, one person that comes to mind is John W. Davis, who was the leading Supreme Court advocate of his era.  Davis argued over 100 cases to the Justices as Solicitor General and in private practice, including The Steel Seizure Cases (which he won).  He was also a Congressman, the Democratic nominee for president in 1924 (he lost to Coolidge), and a leader of the bar for decades.

Davis is unknown (or infamous) today because he argued the segregationist position in Brown.  Why did he take the case?  The obvious answer is that he was a racist, but the truth appears more complicated.  In 1924, Davis fared poorly in the general election partly because Southern Democrats viewed him as too liberal on race based on his record as SG.  How did that guy become the villain in Brown?  I don’t know, but I’m going to try to learn more.