Author: Gerard Magliocca

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Is the iPhone Defectively Designed?

This is a question raised by a fascinating NYT article on Sunday.  Here’s the argument: Apple has a patent on a technology that would prevent the iPhone from sending or receiving texts in a moving car.  This technology is not, though, part of the iPhone.  Since texting while driving is a significant cause of accidents, Apple could be liable on a design defect theory for any car accident where texting on an iPhone while driving causes the harm.

The missing information here is whether Apple’s patent actually works and at what cost.  I’m dubious that such a patent can tell the difference between a driver texting vs. a passenger texting, or someone texting in a car vs. someone doing that in a train or on a bus.

Suppose, though, that a patent could lock out only texting while driving.  Then I would think that, unless the technology was pretty expensive, the failure to include it as a standard feature would be a serious problem for Apple even if many customers would be angered by such a lockout.

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The Time for a Presidential Veto

I just finished reading Samuel I Rosenman’s book Working With Roosevelt, which is the biography of FDR’s principal speechwriter during his years as Governor and for much of his presidency. In that book, I came across this interesting constitutional nugget.

Article One, Section Seven says: “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

When the President was preparing to go to Tehran for his conference with Stalin and Churchill in 1943, the following question came up:  Suppose a bill was passed while he was away and it took more than ten days to send the legislation around the world, get his decision, and send the decision back.  (No phone connections could work, of course.) The President’s advisors concluded that the constitutional language “presented to him” could be read as “presented to him in person,” which would mean that the ten days would not start until the bill reached Iran.

It turned out that the President did not need to veto any bills that he could not return in ten days from the time of passage, so the problem never ripened. Still, a neat problem for discussion.

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Donald Trump and the Politics of Disjunction

I posted the following discussion of Donald Trump’s candidacy on Balkanization in January.  I think it stands up pretty well while being neutral, so I thought I would reprint it here:

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We’ve had an extended discussion on the blog about whether Barack Obama is a “reconstructive” President as described in the groundbreaking scholarship of Stephen Skowronek. Part of the answer turns on the outcome of 2016 presidential election. Will Obama’s successor build on what he did or repudiate his legacy? That remains to be seen.

There is another way, though, of looking at this question. Skowronek’s presidential typology says that political coalitions in decline tend to turn to outsiders who have, for lack of a better term, a reputation as a “Mr Fix-It” rather than deep connections to the party’s ideology or constituencies. Past examples include Herbert Hoover, a self-made millionaire who (though it’a hard to remember now) was widely thought of as a problem solver before he was elected. Jimmy Carter is another example–he was an engineer by training–who was a classic outsider in 1976. On the losing side, there was Wendell Wilkie (the GOP nominee in 1940) who had never been elected to anything and was touted for his business success. These are the “disjunctive” presidents or presidential candidates.

The Republican Party went with this sort of strategy in 2012. Mitt Romney was mainly known as a success in business and as a highly competent manager (of, for example, the Winter Olympics). As Governor of Massachusetts for one term, he certainly did not come from the heartland of the GOP coalition and did not have broad government experience. There was a plausible advantage in this, though, as he also did not carry much of the baggage that a party insider or crusader would.

Now we are getting disjunction on steroids with Donald Trump. He is also pitching himself as “Mr Fix-It” without any significant commitment to the traditional ideology of the party or, of course, any service in office. He is presenting this as a plus, and certain party elites are in the process of deciding that this he be better than someone closely identified with the party’s ideology–Ted Cruz. You can also contrast Trump’s success with the weakness of the obvious Establishment candidate–Jeb Bush–to see how far the traditional formula for success in the GOP primary is falling short this time.

Why does this matter? Because disjunctive candidates only do well at the end of a particular coalition, which implies that the other side represents the start of a new one. But has that already happened with Obama’s election, or will it happen after, say, President Trump has a disastrous term?

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A Forthcoming Book to Recommend

I was at The University of the South (Sewanee) for a conference on the 150th anniversary of Tennessee’s ratification of the Fourteenth Amendment. There were many terrific presentations there, but I wanted to single out one by Dan Sharfstein about his upcoming book entitled Thunder in the Mountains: Chief Joseph, Oliver Otis Howard, and the Nez Perce War.  (It’s available for pre-order here.)  Here is the Abstract:

The epic clash of two American legends―their brutal war and a battle of ideas that defined America after Reconstruction.

In 1865 Union Army General Oliver Otis Howard took charge of the Freedmen’s Bureau, tasked with helping millions of former slaves become free and equal citizens. He was so committed to civil rights that Howard University was named for him. But when Reconstruction failed, General Howard was sent to the Pacific Northwest to force Native Americans onto reservations. His biggest adversary was Chief Joseph, a Nez Perce leader who doggedly pushed federal officials to save his ancestral territory and to give Native Americans equal rights. Although Joseph echoed Howard’s earlier views about liberty for freed slaves, in the summer of 1877 the general and his troops ruthlessly pursued Nez Perce families who refused to leave their homes. Thunder in the Mountains is the story of two remarkable Americans who fought vicious battles across 1,400 miles of the northern Rockies and waged a war of ideas about freedom, equality, and the role of government in American life.

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The Journal of the Joint Committee on Reconstruction

I wanted to post about the bizarre tale of the Journal of the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment.

Unlike the Constitutional Convention, where James Madison kept an extensive record of the proceedings (supplemented by an official journal and some notes from other delegates), the only record of what occurred in the Joint Committee was created by George Mark, a clerk from Maine who probably received that assignment by Senator William Pitt Fessenden, a senior member of the Committee from Maine. Not much is known about Mark other than the fact that he later worked at the Library of Congress.

After the Joint Committee disbanded, Mark’s journal was retained by Senator Fessenden, then by his son, and then by his grandson. Around 1908, the journal was sold by the Fessenden family to a private collector. Not long after that, a doctoral student at Columbia–Benjamin Kendrick–traced the journal and was able to get Columbia to buy the original manuscript, which he then reproduced in his 1915 dissertation. Kendrick verified the Journal’s authenticity by contacting Mark’s son to confirm his father’s handwriting.  (There were also handwritten sheets from some of the members of the Joint Committee in Mark’s collection.)

This account, though, leaves many questions unanswered.  When did Mark write the journal?  At the time the Committee was meeting, or years later? Was he a reliable eyewitness? Since there are no other records of the Joint Committee’s proceedings, how do we know that Mark’s notes on the motions are correct? And did anything go missing in the decades prior to publication?  Strange that these questions have not been pursued by researchers.

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11 Reasons Not To Enforce Your Trade Secret

Colonel_Sanders_Rapstar-1I’m strangely fascinated by the recent “revelation” about Colonel Sanders’ secret recipe for Kentucky Fried Chicken. His nephew showed a journalist a handwritten list that was left behind by Sanders’ second wife that listed 11 herbs and spices in specific proportions.  Yum Brands, which owns KFC, denies that this is the secret recipe.

This situation exposes a basic problem in trade secret law, which is that the available remedies are often pretty inadequate. Suppose this is the secret recipe.  Suing Sanders’ nephew will not get you much in damages–he’s not wealthy.  You can’t get an injunction–the information is out.  Maybe the only thing you can do is pretend that this is not the real recipe and not bring an enforcement action at all. (Granted, you can say that the real value of KFC is in its brand rather than its secret recipe, so a revelation like this actually causes little or no harm, but I’m not sure Yum thinks so.)

More broadly, trade secret law suffers from the problem that the owner of the information really needs an ex ante remedy akin to a prior restraint.  Once the secret information is out, there’s not much that can be done. Acting before that happens, though, is often impossible or requires keen anticipation skills. Perhaps this is why, as a practical matter, confidential information is protected more effectively through physical security measures, extra compensation, etc.

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Vergara and the Future of Liberal Constitutionalism

The other day the California Supreme Court decided not to grant review in Vergara v. California, which raised the issue of whether state law regarding teaching tenure violates the equal protection rights of students (basically, by irrationally allowing bad teachers to stay employed). The Court was divided 4-3, with Justices Goodwin Liu and Mariano-Florentino Cuellar dissenting and urging that the case be heard.  [Disclosure: Justice Liu was my law school classmate.]

I think that the dissenting position in this case represents the future of liberal constitutional thought, keeping in mind that there was no decision on the merits in Vergara. What I mean is that liberals in the academy and on the courts are probably going to start taking more seriously the idea that the Constitution confers positive rights or requires a more compelling state justification for policies that lead to unequal outcomes in the distribution of those benefits by legislation. When I say the future, I mean a decade from now. Merrick Garland and Steven Breyer are the archetypal legal process liberals who will not be terribly interested in such claims, but the next generation will probably have greater faith in the judicial capacity to address these problems.

Whether this is a good idea is another matter.  We’ll cross the bridge when it comes.

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The Next Supreme Court Term

We are within six weeks of the start of the Court’s next Term, which promises to be two terms in one.  The first will consist of eight Justices.  The second will consist of nine, though when and by whom is unclear.

This leads me to wonder if next year the Court will have to forego its traditional custom of issuing all of its merits opinions by the end of June.  If there are deadlocks in cases in the first portion of the Term, presumably those cases will be held over for another argument in the second portion. If there are several of those (or if the new Justice is not confirmed until later in the Spring), can the Court finish its business by the end of June?  Seems doubtful.

It’s worth noting that Judge Merrick Garland is currently on one of the world’s longest paid vacations, as he must by tradition be recused from all cases so long as his nomination is pending.  I wonder what he does all day.

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Law and the Modern Mind–Unanswerable Questions

I am honored to comment on Susanna Blumenthal’s new book. One of the many benefits of reading Law and the Modern Mind is that it offers a window into a range of common law topics from the nineteenth century, including contracts, torts, criminal law, and trusts and estates. The sheer breath of Blumenthal’s research is astounding, especially as she delves into the philosophy and psychology behind the presumption of rationality.

The book looks at how lawyers, judges, and scholars tried to craft exceptions to the presumption. One theme that really stood out for me is how society often struggles to reconcile unusual beliefs with rational behavior.  In effect, someone who has an idiosyncratic view (say, leaving all of their wealth to the family cat) can get characterized as irrational as a way of justifying a rejection of the choice that they rationally made.  Thus, the inquiry into rationality is sometimes a judicial tool for regulating behavior rather than a genuine inquiry into a person’s mental state. (There are lots of examples of this in the book.)

Even when the search into another’s mind is genuine, though, Blumenthal’s examination shows how difficult that task is. For criminal law in particular, the problem was identified in Ancient Greece. Can a rational person knowingly commit an evil act? Don’t people who do something evil think that they are doing good? Ron Rosebaum’s extraordinary book on Explaining Hitler argues that this claim can be made about Hitler himself, as as times he seemed to think he was helping humanity by killing Jews. The law faces this sort of dilemma from time to time when someone does something particular vicious. Must a person be insane if they, say, shoot up a school?  Why would a rational person do that? Or is it just too awful to admit that rational people would do that?

Blumenthal’s fascinating case studies provide lots of food for thought, but it’s not as if the twentieth or twenty-first centuries have solved these problems.  John Hinckley’s attempt to kill President Reagan in 1981 led to a verdict of “not guilty by reason of insanity.” (Blumenthal mentions that Charles Guiteau, who assassinated James Garfield in 1881, made a similar unsuccessful claim at his trial.)  Perhaps this was the correct assessment of Hinckley’s mental state then (recently he was released to the custody of his parents) or maybe it just struck people as too ridiculous to think that a rational person would shoot a president to impress an actress. (Though that seems less implausible now than it probably did then.)

This is a tour de force on a very challenging subject. I look forward to the rest of the Symposium.