Author: Gerard Magliocca

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Oral Argument as Performance Act

I’m hibernating doing edits on a paper that are under deadline, but I did want to offer one thought about the oral argument in the same-sex marriage cases.  Some who oppose televising arguments claim that this would turn them into a performance rather than a genuine conversation between the Justices and counsel.

It seems to me, though, that in the high-profile cases where same-day audio is being released, this is already the case.  Anybody who believes that Justice Kennedy is uncertain about what he will do in these cases is fooling themselves.  But he must have felt as though he should at least pretend to have doubts to appear neutral.  If he and his colleagues allowed thousands of same-sex marriages to occur by allowing circuit court decisions, say in the Seventh Circuit, to become final while harboring doubts about whether that was constitutionally required, then they are guilty of an abuse of office.  There is no way that the majority harbors such doubts, though, so let’s move on to what the opinion will say.

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The Legacy of Chief Justice Fortas

120px-Abe_fortas_hand_in_airThis is a new paper that I have forthcoming in Green Bag.  I’ve always wanted to publish something there, but until now I never had anything that would work (in other words, under 5,000 words and less than fifty footnotes).  Readers of CoOp will find the arguments familiar, as I’ve posted about them previously.

One point that I plan to elaborate further in my revisions is the thought that the extrajudicial or partisan scope of what the Justices could do shrank dramatically in the 1960s in part because the scope of their judicial authority increased.  More on that another time.

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Call for Papers–AALS Section on Law and Sports

The AALS Section on Law and Sports is pleased to announce the inaugural AALS Section on Law and Sports Award to recognize an individual that has made a substantial and significant contribution to scholarship, teaching, and/or service in the area of law relating to sports. Section members and other individuals are eligible for the award, but law schools, institutions, and organizations are not eligible to receive the award. A committee comprised of section members will consider all nominations and select a deserving recipient for recognition at the 2016 AALS Annual Meeting.

Please email nominations – and any supporting information – to Professor Dionne Koller at dkoller@ubalt.edu. In your nomination, please provide an explanation as to how the nominee meets the criteria for the award. Nominations are due by August 1, 2015.

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Guido on Law and Economics

Guido Calabresi has a new book coming out in January on Law and Economics.  While I’m not an unbiased source (as his former clerk), I have read a draft and think this will make a big splash.  Closer to the release date, it is my hope that CoOp will hold a Symposium on this book and see if we can host Guido’s first-ever blog post.

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More Questions About the Meaning of “Legislature”

The Justices are still considering the Arizona redistricting case that I’ve posted about several times, but a few other things occurred to me about that pending decision that I wanted to share.

1.  At oral argument, Justice Kagan pointed out that there are many state constitutional provisions that regulate the “time, place, and manner” of voting in congressional elections.  I’m not sure how many there are, but it would seem that all of them would be vulnerable under an analysis that says that only the state legislature may make those regulations subject to congressional preemption.  It would be useful to know (and the dissent may end up telling us) how many of these there are.

2.  If you take the legislative exclusivity argument seriously, doesn’t that mean that a state court interpretation of a voting regulation for congressional elections could raise a federal constitutional question?  In Bush v. Gore, Chief Justice Rehnquist’s concurrence argued that the Florida Supreme Court’s interpretation of state election law regarding the selection presidential electors was so flawed that “the Legislature” was not truly exercising its constitutional authority under Article II.  Couldn’t the same be true for a legislature under Article I?  (Yes, I know–it was a plurality opinion from Bush v. Gore.  Two strikes there.  But still.)

3.  If Arizona’s plan is unconstitutional, then California’s plan of open primaries adopted as part of the state constitution is probably also unconstitutional.  Oddly enough, the Legislature elected under that plan can cure the constitutional flaw by just enacting the same plan as a statute.  Right?

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The Great State Constitutional Opinions

Suppose you had to name the Top 5 constitutional decisions by a state court.  What would they be?  This could refer to readings of a state constitution or a state case on the Federal Constitution.  Here are some thoughts:

1.  Goodridge v. Dept. of Public Health (Mass. 2003).  This was not the first state case finding a right to same-sex marriage (that was in Hawaii), but this was the most important.

2.  Ives v. South Buffalo RR (N.Y. 1911).  This case invalidating the state worker’s compensation statute as a due process violation sparked outrage across the country and led to modifications in the Supreme Court’s jurisdiction.  (The case could not be reviewed by the Justices at the time.)

Other candidates?

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The Disposition of Justice Souter’s Papers

I have received a letter from Justice Souter stating that his papers (in the New Hampshire Historical Society) will be available on the 50th anniversary of his death.  In other words, probably not while any of us are alive.

UPDATE:  For those of you emailing me, he did say “death” and not “retirement.”

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Governing the District of Columbia

A quick thought that occurred to me recently is that someone could probably write an interesting article on how Congress governed the District of Columbia from its creation in 1800 until Home Rule was established in the 1970s.  The District (along with the territories) was one place where Congress did possess a police power.  How was that power exercised?  Were certain regulations justified as fine in the District but not elsewhere based on the police power distinction?  In going through the Annual Messages of the Presidents, I noticed that they often talked about issues in the District as deserving of Congress’s attention.  Anyway, I may post more about this in the coming weeks.

UPDATE:  Consider that Marbury v. MadisonBolling v. SharpeAdkins, and Heller were all cases arising out of municipal regulations in the the District.  I’m trying to think of other examples.

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Advisory Statutes

Here’s an idea that I’m playing with today.  There is a law (enacted in the 1960s) that purports to limit the President’s authority to appoint family members to positions that are subject to Senate confirmation.  In part, this was passed in response to JFK appointing RFK as Attorney General, though more broadly one could describe this as an anti-nepotism statute.

I’m wondering how this statute would work in practice.  If a President did nominate a sibling to the Cabinet, would the Senate be unable to confirm that person?  If the Senate did confirm that person, would there be a judicial remedy to oust him or her from office?  Or is this a kind of advisory statute?  In other words, it isn’t legally binding–it just states a principle that we hope people will observe.

I ask this, in part, because the concept of an advisory statute might help illuminate the War Powers Act.  I’ve always found the practice under this law hard to understand.  It supposedly sets strict limits on the use of military force without congressional approval, but Presidents and Congresses only sort of pay attention to its rules.  Every President since 1973 denies that the Act is constitutional, but they observe at least the forms of the Act and decline to mount a court challenge.  Congress, meanwhile, often looks the other way when invoking the Act would be inconvenient.  Is the best way of understanding this that you can have laws that . . . don’t create law?