Author: Gerard Magliocca


AALS in New York

I will be at the AALS Annual Meeting this week, and would love to see any CoOp readers or colleagues who will be there.


Racial Preferences in University Admissions

In Round 2 of the Fisher litigation, there was another discussion about the use of racial preferences at the military academies.  In Grutter, the Justices were clearly influenced by a brief from top military officers arguing in support of those preferences to ensure diversity of the officer corps.  When Fisher is decided, the Court may distinguish the military schools from all other state universities as a special case where there is a compelling state interest in using race.

Another way of looking at that potential distinction, though, is that the service academies are federal institutions.  Giving them greater latitude to use race would, in effect, resuscitate Metro Broadcasting, Inc. v. FCC, a 1990 decision that held that the Federal Government had more freedom to use racial preferences because the Equal Protection Clause was directed at the states.  Metro Broadcasting was subsequently overruled, but I wonder if there was something to the federal/state distinction that case made.


William Winslow Crosskey

apf1-02037tIn my research, I keep coming across Professor Crosskey’s work and the intellectual puzzle of the man.

If you don’t know, Crosskey was a constitutional scholar at the University of Chicago from 1935-1962. His most prominent student (I think) was Robert Bork, who probably absorbed Crosskey’s keen interest in history as he developed the first version of originalism.

Crosskey was capable of astounding insights that no other person could have produced.  For example, he would supposedly begin his con law class by slamming Max Farrand’s book on the podium promising “to demonstrate to you that Madison was a forger–[that] he tampered with the notes he kept of the debates at the federal constitutional convention in order to suit his own political advantage and that of his party.”  Turns out that there was a lot of truth in this claim, as Mary Bilder’s new book on the Notes explains.  Crosskey also was the strongest academic critic of Charles Fairman’s article rejecting incorporation, and made many telling points in favor of what the Court eventually (for the most part) embraced.

On the other hand, Crosskey also said a lot of wacky things.  Indeed, I would be very reluctant to take anything he said about history as true without checking, and I think others who have used his work would say the same thing.  How to explain this paradox?

When Crosskey died in 1968, Harry Kalvan wrote a tribute explaining that he did not start at Law School until he was 30, but that at Yale he was “a formidable figure who sat in the front row scowling at everything that was said, his arms obdurately folded as he conspicuously declined to take notes.”  After clerking for Chief Justice Taft and working with John W. Davis in practice, he went to Chicago at age 40.

I would be curious if any of our readers was a student of Crosskey’s.



Revised Paper on the Bill of Rights

I’ve posted a substantially revised version of my draft article on “How Did The Bill of Rights Become the Bill of Rights?”  This draft reflects some changes in my thinking as I’ve been writing the book and doing additional research.  In particular, there is more emphasis here on how the Bill of Rights was used (prior to World War II) to justify extensions of federal power; a process that culminated in FDR’s “Second Bill of Rights” speech in 1944.


Upcoming Symposium on Law & Econ

I’m pleased to announce that CoOp will be hosting an online symposium during the first week of February on Guido Calabrese’s new book entitled The Future of Law Economics:  Essays in Reform and Recollection.  Participants will include: Ian Ayres, Lee Fennell, Carol Rose, Arden Rowell, Ken Abraham, and Dan Cole. Should be fun.


Updating Statutory Codes

There’s a fun article in the NY Times about the ongoing effort in the British Parliament to repeal archaic laws (some dating from the 13th century). I wonder if Congress or some state legislatures should sponsor a similar law reform effort, as some states do periodically.

To take a simple example, many states still have statutes that make adultery a crime.  I submit that no person will ever be prosecuted again for adultery in the United States, so what is the point of these laws?  I’m sure that there are many other examples (especially in older states) that deserve repeal.  It’s a tedious job, but a couple of diligent people could find candidates and make suggestions.


Why Supreme Court Oral Arguments Will Never Be Televised

The recent controversy over Justice’s Scalia’s comments during the oral argument on affirmative action explain why the Justices will never agree to open arguments for television.  (I’m not saying that’s a good thing–I’m saying this is just true.)

Justice Scalia was only summarizing what the amicus brief said about mismatch theory.  Now did he do this in the most artful or sensitive way?  Definitely not. But it’s not as if he was writing an opinion–he was asking a question.  The subsequent criticism of him is, in my view, unfair.

Of course, the Justices are no different from politicians in thinking that the media sometimes distorts their views.  The difference is that they are in a position to block television in their Court, and they will continue to do so.


Guns and Abortion

I guess I should say something about the most recent discussion on guns in the United States. My take is that the answer to the problem of gun violence rests on changing culture rather than law.

The right to own a gun for self-defense and the right to have an abortion are both constitutional freedoms that many people reject as too costly (in other words, they kill lots of people). In both instances, though, if you ended the rights in question there would be plenty of lawbreaking that would be even more costly. So what is the upshot?  You can have regulations that marginally restrict the activity, but they are largely symbolic (say, banning partial birth abortion or things that are characterized as assault weapons).

Another solution involves just persuading people that the act in question is wrong or unnecessary.  This is much harder and far less satisfying because it concedes that the activity will continue, but in terms of reducing the harm it’s probably the more effective answer.

I wonder whether gun control proponents will start moving in the direction of direct protests (say, outside their local gun shop) the way anti-abortion activists target clinics.


Richard Nixon’s Law Review Note

240px-Elvis-nixonThough I was exposed to this in law school, many of you may not know that Richard Nixon wrote a Note while he was a law student at Duke for Law and Contemporary Problems. The paper is entitled “Changing Rules of Liability in Automobile Accident Litigation,” and provides a solid analysis of the tort doctrines of the day.  An interesting curiosity.


Delegating the Dark Side of the Force

With Cass Sunstein working on a book about Star Wars and the new movie soon to drop, I thought I’d take the bait and write about the constitution of the First Galactic Empire.

If we use constitution in the British sense to describe the way in which a government works, then the most interesting feature of the Empire is its decentralized structure and breathtaking delegations of power. This is established early on in Episode Four, following the dissolution of the  Senate and (presumably) the end of Jar Jar Binks’s career.

In response to the dissolution, one of the Death Star officers asks, “How will the Emperor maintain control without the bureaucracy?” Grand Moff Tarkin replies, “The regional governors now have direct control over their territories.”  (I would think that governors would also have a bureaucracy, but anyway.). The power of these imperial governors was nothing, though, compared to the authority delegated to the Grand Moff himself, who could destroy entire planets without the need for consultation.  No wonder the commander of the Second Death Star is shocked in Episode Six when he learns that the Emperor conducting an inspection (“The Emperor is coming here?”)  After all, he never does anything in person.

Yet there were costs to an administrative design that placed so much trust in subordinates.  First, Darth Vader was free to hand the plans to the Death Star to the rebels with disastrous consequences.  Second, the commander chosen to lead an entire legion of the Empire’s best troops was incompetent and defeated by a bunch of teddy bears.  Third, the Empire only narrowly avoided a succession crisis, as it was not clear whether Vader or the Grand Moff was second-in-command (arguably Tarkin ordered Vader to release a choke-hold on his colleague and Vader complied (“As you wish.”).

Of course, centralized evil empires also have flaws.  See Sauron v. Frodo, 56 M.E. 875 (3rd Age, Mordor).