Author: Gerard Magliocca


A Right to Write-in

I voted in the Indiana primary on the Republican side (hint:  It wasn’t for Trump or Cruz) and this thought struck me as I looked down ballot.  In many races, the party nominee was unopposed and there was no write-in option available.  Should I, as a voter, have the right to vote for whomever I want through a write-in?

There is no doubt that states can regulate who appears on the ballot, as there could be significant administrative problems if anyone who wanted to be on at any time before the election could get on.  Are there similar issues with respect to write-ins?  Not really.  Having a write-in option does make counting the votes a little more difficult, but that seems pretty insubstantial.  On the other side, you can make a strong argument that voters should have the option of voting for someone not on the ballot as part of their freedom of choice.


Federal Trade Secret Law

I just wanted to note that Congress has passed a new federal trade secret remedy, which the President intends to sign into law.  Who says that nothing gets done in Washington.  (Though I doubt that this is a good move.)  The Act does not preempt state trade secret law, so it remains to be seen how much of a role the new federal remedy will have.


John Quincy Adams

John_Quincy_AdamsI want to give a big thumbs-up to the new biography of John Quincy Adams by John Traub entitled “John Quincy Adams: A Militant Spirit.” Part of the book is a superb diplomatic history of the United States, as Adams was our Ambassador in Holland, Prussia, Russia (during Napoleon’s invasion), and Britain, along with serving for eight years as Secretary of State.  The discussion of Adams’ tenure in Congress, where he became the leader of the anti-slavery forces, is also riveting and well worth your time.  I came away with a more positive impression of Adams.


Please Pay Me My Blackmail

I’m fascinated by the lawsuit filed against Dennis Hastert by one of his alleged sexual abuse victims for breach of contract. In essence, the suit says that Hastert agreed to pay him around $3 million in compensation but only paid 1/2 of that (due to the feds catching on to the former Speaker’s attempt to structure his payments to avoid detection.)  Now the plaintiff wants the other half.

I don’t how this suit can succeed (though the point of this is probably just to make clear what Hastert allegedly did).  If this is understood as a payment of blackmail, then the contract cannot be enforced as a matter of public policy.  How can it not be construed that way?  If Hastert had refused to pay, what would the plaintiff have done?  Nothing?

Granted, if the allegations against Hastert are true, then he’s an awful, awful human being.  And perhaps blackmail should not be unlawful in circumstances such as this.  But it is, and thus I don’t think that a failure to pay can be converted into a contract action.


Why No Rearguments?

Two months after Justice Scalia’s death, we can see a pattern emerging on how the Court is treating cases on which they are divided 4-4.  First, they are making an effort to find a majority through compromise, which is fine as far as it goes.  Second, when that proves impossible, they affirm by an equally divided Court.

What the Court is not doing is putting over cases for another argument next Term.  Sometimes a delay of a year or more might simply be intolerable for the parties to the litigation or for some other reason. Perhaps the Court is also reluctant to put cases over during this Term–they might be more willing to do that in the Fall since a new Justice will surely be in place by next Spring.  And I can also see that the 4 Justices who think they will lose when a new argument occurs may prefer a draw.  Still, I would think that there should be at least one 4-4 case that merits reargument.


Robert’s Rules of Order

I’m sure most of you are familiar with the idea of Robert’s Rules of Order.  They are used by countless civic organizations for meetings.  What is surprising to me, after looking into this a bit, is that there is almost no academic writing about them.  It’s surprising because: (a) they probably wield significant influence over what many folks think about deliberative assemblies; (b) they must reflect a broader understanding about how democracy should work; and (c) I don’t know why they became the gold standard.

I raise this question in part because of something curious in the rules of the Republican National Convention.  The Convention’s default rules are from the House of Representatives.  Convention committee’s, though, use Robert’s Rules of Order.  Why are they different?  And how do those differences matter?  Hard to say, as I don’t know enough about the details of Robert’s Rules.


Promising Official Jobs for Support

192px-Dwight_D._Eisenhower,_official_photo_portrait,_May_29,_1959During the presidential campaign there has been some discussion of a provision in federal law (18 U.S.C. § 599) that bars candidates from promising jobs to garner support. I’m not clear whether this provision applies to presidential candidates, but if it does I’m not sure why it should.

History is replete with situations where presidential candidates did exactly this to either get the nomination or win an election.  John Quincy Adams and Henry Clay in 1825 (Secretary of State), Dwight D. Eisenhower and Earl Warren in 1952 (the Supreme Court), and candidates who offered the vice-presidency to win over convention delegates for support. (Ronald Reagan, for example, in 1976). I don’t see why any of this should be a crime.

While I’m on the subject, I think it would be great if candidates would name some key Cabinet members in advance, much as you see a “shadow Cabinet” in parliamentary countries.



State Antitrust Law

Here’s a topic that came up in a faculty workshop the other day.  What does state antitrust law do?  The federal antitrust statutes do not preempt state law.  Large mergers are scrutinized by state AGs for compliance with their state statutes.  Yet the state statutes are all virtually identical to the federal ones, and it appears that states in this area do nothing more than seek to extract rent as the price of not seeking to block or delay a corporate transaction.

Could state law being doing more in this respect?  Should one state amend its statute as an experiment?  If so, then how?  Or should Congress conclude that state antitrust law is a fiction and actually preempt those statutes?  Thoughts?


A Senate Executive Order

I want to try to draw an analogy between the Senate’s refusal to give Judge Garland a hearing and President Obama’s use of an executive order to implement immigration reforms.

What is the difference between an executive order and a statute? That’s pretty obvious–the former does not bind the next President while the latter does.  What is the difference between the Senate’s refusal to vote on a Supreme Court nominee and a statute that eliminates a vacant seat?  The same thing.

Here’s the next thing. One objection to President Obama’s executive order on immigration is that he lacks the statutory authority to do what he did.  (The Supreme Court will take that up later this month.)  Another complaint, though, is that the order is legal but that a President should not address such a sensitive and important question unilaterally.  He has a duty, you might say, to work with Congress. For the Senate’s inaction on Judge Garland, the argument is similar.  The Senate has the power to not act, but that on such an important matter they have a duty to work with the President by acting.

In both cases, though, the “duty” is just political.  If the President thought that taking unilateral action on illegal immigration would be politically harmful, he wouldn’t have done it.  The same is true for the Senate Republicans now.  We’ll see if they are right.


Rule of Recognition for Party Nominations

There are many scenarios that could play themselves out at the Republican National Convention this July, but here is one that I thought I’d flag.  Suppose the loser claims that he was cheated out of the nomination by a manipulation of the rules, questionable rulings on delegate credentials, etc.  A lawsuit challenging the official result would almost certainly go nowhere, but . . .

How does a state official decide who is the Republican nominee for President?  This is almost always a ministerial task, but what if the loser argues to, say, the Secretary of State of Florida that he was the real winner of the nomination and should appear on the ballot.  (Kind of like the medieval period where there were two Popes each claiming that the other was not legitimate.) Does that Secretary of State have the discretion to decide who won?  If so, how would she decide?  And if that decision were challenged by another candidate, on what basis would a state court overturn that decision?