Author: Gerard Magliocca


The Birth of Law Reports

Published law reports are an essential component of a common-law system. Without knowing what a prior case held or said, how can anyone follow precedent? But the system of law reports that we have evolved in a haphazard manner. Until well into the nineteenth century, reports were put together by private individuals (sometimes on their own and sometimes hired by a court) or by the judge. As a result, many of the law reports that we have from early American cases are incomplete or missing.

One of Bushrod Washington’s many contributions was in getting more reports done. As a private practitioner, he published volumes on the opinions of the Virginia Supreme Court based on his notes. As a Supreme Court Justice, he worked to get reports of his circuit cases published in a more diligent manner than many of his colleagues.

Of course, there was a selfish aspect to this. Disseminating his own opinions increased Justice Washington’s influence. There was also selective bias at work. In my research, I have found some notes that Washington made for the preparation of circuit reports, where he explains how his oral statement about the case should be modified prior to publication. Sometimes he suggested revisions to clarify what was said, but sometimes he did so to correct an error he felt he had made.

There are also one set of cases that Washington never reported–his trials involving the Alien and Sedition Acts. This omission is probably not an accident, given how controversial those cases were. This is on reason why taking control of the reports away from the courts was a sound change.


FAN 196 (First Amendment News) Special Issue: 20 New or Forthcoming Books


        Marvin Kalb (Sept. 25,  2018)         Lukianoff & Haidt (Sept. 4, 2018)          Cynthia Chris (Jan. 2019)


Banned Books Week 2018, the annual celebration of the freedom to read, will be held September 23 – 29. The 2018 theme, “Banning Books Silences Stories,” is a reminder that everyone needs to speak out against the tide of censorship.

For more information, click here












Eric Robinson(Dec. 12, 2018)              Larry Brimner (Oct. 9, 2018)               Dan Bernstein (Jan. 1, 2019)












Christian Cotton & Eric Arp, eds. (Nov. 13)  Kristie Byrum (Aug. 15, 2018)  Mike Ananny (May 4, 2018)


Bollinger & Stone, eds. (Dec. 3, 2018) Read More


Copyright in Visual Art

I want to flag a terrific new article by Amy Adler on copyright law and visual art, entitled Why Art Does Not Need Copyright. Here is the Abstract:

This Article explores the escalating battles between visual art and copyright law in order to upend the most basic assumptions on which copyright protection for visual art is grounded. It is a foundational premise of intellectual property law that copyright is necessary for the “progress” of the arts. This Article demonstrates that this premise is flatly wrong when it comes to visual art. United States courts and scholars have come to understand copyright law almost universally in utilitarian terms; by this account, the reason we grant copyright to authors is to give them economic incentives to create culturally valuable works. But legal scholars have failed to recognize that their paradigm makes no sense when applied to visual art, one of the highest profile and most hotly contested fields in intellectual property law. This is because scholars have failed to take into account the single most important value for participants in the art market: the norm of authenticity, which renders copyright law superfluous. The fundamental assumption of copyright law—that the copy poses a threat to creativity—is simply not true for visual art. By juxtaposing copyright theory with the reality of the art market, this Article shows why copyright law does not—and cannot—incentivize the creation of visual art. In fact, copyright law, rather than being necessary for art’s flourishing, actually impedes it.


Bushrod Washington and the Nuremberg Principle

I came across this interesting passage in a jury charge given by Justice Washington, which speaks for itself in light of so many crimes that have been committed since:

The only remaining question of law, which has been raised in this cause, is, that the prisoner ought to be presumed to have acted under the orders of his superior officer, which it was his duty to obey. This doctrine, equally alarming and unfounded, underwent an examination and was decided by this court, in the case of general Bright. It is repugnant to reason and to the positive law of the land, No military or civil officer can command an inferior to violate the laws of his country, nor will such command excuse, much less justify the act. Can it be for a moment pretended that the general of an army, or the commander of a ship of war, can order one of his men to commit murdcr, or felony ? Certainly not. In relation to the navy, let it be remarked, that the 14th section of the law, for the better government of that part of the public force, which enjoins on inferior officers, or privates the duty of obedience to their superiors, cautiously speaks of the lawful orders of that superior.

Disobedience of an unlawful order, must, of course, be dispunishable, and a court martial would, in such a case, be bound to acquit the person tried upon a charge of disobedience. I do not mean to go further than to say, that the participation of the inferior officer in an act which he knows or ought to know to be illegal, will not be excused by the order of his superior.


The Crickets Are Chirping

As we await the President’s nomination for the Supreme Court, I thought I would just note that the President has not referred to the Bill of Rights at all in 2018. Not once. I also went back through his Twitter feed and found that he has never mentioned the Bill of Rights in any tweet he’s ever written, going back to when he started his account as a private citizen. Just saying.


Jusice Thomas and Justice Washington

In my research, I’ve noticed that Bushrod Washington’s biggest fan in recent years is Justice Thomas. Justice Thomas has cited Washington by name in four opinions.

Upper Skagit Indian Tribe v. Lundgren (2018) (dissenting).

Johnson v. United States (2015) (concurring).

McDonald v. City of Chicago (2010) (concurring).

Saenz v. Roe (1999) (dissenting).

Likewise, Justice Gorsuch cited Justice Washington twice just this year. Part of this simply reflects an originalist approach that gives relatively more weight to opinions written by Justices who were part of the ratifying process for the Constitution. We’ll see if the trend continues.


For the 4th!

In my book on the Bill of Rights, I argue that the first set of amendments was not widely known by that term until the 1930s. A friend of mine recently sent me an excerpt of Black’s Law Dictionary (circa 1910) containing its entry for the term “Bill of Rights.”

“A formal and emphatic legislative assertion and declaration of popular rights and liberties usually promulgated upon a change in government; particularly the [citation to the English Bill of Rights of 1689]. Also the summary of the rights and liberties of the people, or of the principles of constitutional law deemed essential and fundamental, contained in many of the American state constitutions.”

Nothing, of course, about any American national bill of rights.


Restoring the Double Jeopardy Clause

Today the Supreme Court granted certiorari in Gamble v. United States, which asks the Court to overrule its 1958 decision in Bartkus v. Illinois. Bartkus was a deeply flawed opinion, written by Justice Frankfurter, which held that a state prosecution for the same criminal act that led to an acquittal in federal court (or vice versa) did not violate the Double Jeopardy Clause of the Fifth Amendment. The Court’s theory was that a state and the United States were “separate sovereigns” and that the Double Jeopardy Clause bars only the same sovereign from trying someone again for a crime after an acquittal.

Bartkus is inconsistent with the history of the Double Jeopardy Clause and the case law underlying that important protection to criminal defendants. I certainly hope that the Court will send Bartkus into the trash can next Term.


Measuring a Judicial Legacy

One way to think about a career such as Justice Kennedy’s is to look at the opinions that he wrote or the cases where he probably supplied the decisive vote.  You can also consider his extra-judicial acts or (years from now) assess his internal influence at the Court through memos.

Here’s another way of thinking about this though. Years from now, will anyone say something like “As Justice Kennedy reasoned” or “As Justice Kennedy explained” in an opinion or a brief? We see that with federal judges like Henry Friendly and Supreme Court Justices like Robert Jackson. And we have already seen that with Justice Scalia since his death. I doubt very much, though, that anyone will think invoking Justice Kennedy by name will convince anybody of anything in future.