Author: Gerard Magliocca


The Six Stages of Scandal

Congressman Anthony Weiner’s “problem” on Twitter calls for an encore of this chestnut (that I borrowed from Mickey Kaus):

Stage 1:  That’s ridiculous.  It can’t possibly be true.

Stage 2:  It’s not true.

Stage 3:  You can’t prove it’s true.

Stage 4:  Why are you trying to prove it’s true?

Stage 5:  It’s disgusting that you proved it’s true.

Stage 6:  What’s the big deal anyway?


Introducing Guest Blogger Michael J. Pitts

I am pleased to introduce my colleague Michael J. Pitts, who will be guest blogging here this month.  Michael is one of the country’s leading election law scholars, and his articles have appeared in journals including the Maryland Law Review,  Alabama Law Review, & Stanford Law & Policy Review.

Prior to joining the IU-Indianapolis faculty in 2006, Mike received his B.S.J. at the Medill School of Journalism at Northwestern and his J.D. at Georgetown.  He clerked for Judge C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit and then worked in the Voting Rights Section of the Justice Department as a trial attorney for four years before doing a one-year stint as a visiting professor at Nebraska Law School.  He frequently provides commentary about election law issues to the media and has been quoted by The Associated Press and The New York Times, and has appeared on CNN.

Welcome Mike!


Blogging Hibernation

I wanted to let readers know that my blogging will be much lighter this summer.  One reason is that I’ll be traveling a fair amount in June (for example, I’ll be at the Law and Society Conference in San Francisco next week).  The other reason is that I have started writing the Bingham book, and I need to concentrate on that for the time being.

Of course, my past attempts at a blogging hiatus were unsuccessful, as something would always come up that I wanted to talk about.  We’ll see how long this one lasts.


What Do Law Professors Do?

In the legal writing interviews with the Justices that I referred to over the weekend, Chief Justice Roberts said that “[w]hat the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law.”  Judges and lawyers often make similar comments, so I thought that I would try to explain why I think this view is, at least, exaggerated.

First, there are many excellent scholars who write traditional doctrinal articles that are useful in deciding difficult cases.  Some fields, of course, lend themselves more to that than others, but I think it would be wrong to dismiss what they do.

Second, some legal scholarship is directed at the Executive Branch, Congress, or administrative agencies. These papers will be of no interest to courts or most practitioners.  For instance, I have an article coming out soon on “Reforming the Filibuster.”  That article is not less valuable because it is about the Senate.

Third, a significant amount of legal scholarship is devoted to “basic research” such as philosophy or history.  Almost every field can be divided into applied research and basic research, and what courts and attorneys do is applied.  It does not follow that because the utility of basic research (say, human anatomy) is uncertain that means it’s useless.  It takes time to figure that out.

Fourth, legal scholarship is indirectly transmitted to judges through their clerks and briefs. Even if a clerk, who is usually more familiar with current law review articles than the judge, does not cite articles that he or she read, the information or analysis in there still exerts some influence on the bench memo or draft opinion.  Ditto for briefs, especially for amicus briefs written by professors, which are more common nowadays.

Now I do not deny that there is plenty of legal scholarship that is esoteric or useless.  That is a necessary cost of academic freedom to some extent, and also reflects the more interdisciplinary nature of the legal academy since the 1960s.  (In other words, the more subjects that are under the law umbrella, the more apt one is to think that a given aspect not your own is a waste of time.)


Edwin M. Stanton

I’m pretty sure that the Bingham book is the only biography that I want to write, but I’ve been getting more interested in Edwin M. Stanton, Lincoln’s Secretary of War.  Stanton was Bingham’s professional and political rival in Eastern Ohio (they debated each other during the 1840 campaign, with Stanton taking the Democratic side and Bingham supporting the Whigs), though Stanton was far more successful in private practice.  He eventually moved to Washington and became a leading member of the Supreme Court bar. He was also a crack trial lawyer.  In 1859 he successfully defended Daniel Sickles on a murder charge (Sickles killed his wife’s lover, the son of Francis Scott Key) by basically inventing the temporary insanity defense.

In 1860, Stanton became Attorney General in the Buchanan Administration and then moved to the War Department as a legal advisor under Lincoln, which was somewhat unusual for a Democrat. When Secretary of War Simon Cameron was fired in 1862, Stanton took his place.  His tenure during the War is generally seen as a success, but the more pertinent point for legal scholars is that he played a critical role in the implementation of Reconstruction via military occupation.  His dismissal by President Johnson was the basis for Johnson’s impeachment, and I want to know more about Stanton’s journey from orthodox Democrat to Radical Republican.

In 1869, President Grant nominated Stanton to the Supreme Court and he was confirmed, but he tragically died four days later.  Stanton was 55.  The prospect of someone so intimately involved with Reconstruction being on the Court is intriguing and losing that service was unfortunate.


Tattoos and “The Hangover” Sequel

In non-John Bingham news, the artist who designed and applied Mike Tyson’s facial tattoo is suing Warner Brothers for copyright infringement because Ed Helms plays a character in the new “Hangover” movie with the same tattoo.  Warner Brothers is claiming, among other things, that the depiction of the tattoo is fair use because it is a parody of the original.  This leads me to ask two questions.

First, is this really a copyright claim or is it a right of publicity claim that belongs only to Tyson?  People have noted that Tyson appeared in the first “Hangover” movie and that the tattoo artist did not sue.  If it was not copyright infringement then, why is it now?  Moreover, is the tattoo best understood as a work of graphic art (which is conceptually separate from Tyson’s face) or as part of his likeness?  It seems to me that the value of the tattoo is really about its association with Tyson and not in its intrinsic merit.

Second, this ought to lead people to question whether tattoos should be copyrightable.  (You can, BTW, ask a fun trademark question about whether somebody who wears a visible tattoo of a famous corporate logo can, under certain circumstances, be required to have it removed as trademark dilution.)  In my utilitarian view of intellectual property, there is no worthwhile argument for allowing tattoo (or architecture) copyrights.  Unfortunately, I think that gets swallowed by a sense that a denial of IP protection is a comment on the status of those arts.  When we say that some fields do not deserve robust property rights (hairstyles, jokes, recipes, fashion designs, etc), that is not a statement that these creative works are less important to society than books, movies, or music.  But many people do view it that way, and so long as they do the pressure to expand protection in these heretofore unprotected domains will continue.


Practice What You Preach

The recent release of interview transcripts with the Justices on the subject of legal writing is drawing a fair amount of media interest.  The headline is that the members of the Court think that briefs are too long.  “Lawyers somehow can’t give up the extra space,” Justice Ginsburg said, “so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief.”

If you substitute “Justices” for “Lawyers” and “opinion” for “brief,” you get a terrific description of the Court’s output most of the time.


The Worst Supreme Court Opinion Ever?

One of the important issues that is discussed in my Bryan book is the disenfranchisement of African-Americans that occurred after the 1896 presidential election.  Populists in the South were allied with Republicans and the freedmen against Democrats, whereas in the rest of the country (with a few exceptions in the silver areas of the West) Populists worked with Democrats.  In a few Southern States (most notably North Carolina) this interracial alliance managed to wrest control of the state legislature and elect members of Congress.  After Bryan’s first defeat, though, orthodox Democrats made a comeback in the South.  Back in power, they decided to consolidate their gains by taking the ballot away from their enemies.

This is an crucial point that often gets overlooked.  Prior to the 1890s, most African-Americans in the South voted. That vote was frequently marred by fraud, but it was still a factor in elections. Starting around 1900, however, a series of state constitutional amendments were adopted that put in place the suffrage restrictions that we associate with Jim Crow (poll taxes, literacy tests, grandfather clauses, etc.) Actually, the poll tax was mostly about blocking poor whites from voting, but the package as a whole was a blatant rejection of the Fifteenth Amendment.

What did the Supreme Court do about this?  Nothing.  When African-Americans in Alabama sued claiming that their constitutional rights were being violated, the Court rejected their challenge in Giles v. Harris.  Justice Holmes wrote for the majority and held that “it seems to us impossible to grant the equitable relief which is asked” [i.e., force the State to register these citizens as voters].  Why was that?

“The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff’s name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that state by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a state and the state itself, must be given by them or by the legislative and political department of the government of the United States.”

Now you can read this passage in one of three ways.  First, it may be the best statement of Legal Realism in the United States Reports.  “Sure we can order a remedy,” Holmes could be saying, “but the political branches won’t back us up, so why give people false hope?”  Second, it could be the most cowardly statement ever made by the Court.  (“We must give way before a conspiracy by a racist mob to deny people express constitutional rights.”)  Or third, you might say that Holmes was recognizing that Bryan’s defeat was tantamount to an amendment of the Constitution that modified the Fifteenth Amendment, which dovetails with the larger descriptive argument that I make in the book, though that does not speak to the validity of the Court’s interpretation.

Giles, like Buck v. Bell, should be in the running for the worst Supreme Court decision of all time.  It is worth noting that three Justices dissented in Giles (Harlan, Brewer, and perhaps most surprising, Justice Brown, the author of Plessy).


John Bingham and the Fugitive Slave Act of 1850

John Bingham was a politician.  It is easy to forget that when we look back at major constitutional leaders.  Their articulation of fundamental concepts makes us think that they were above pandering and always consistent. But that is not true.  Let’s look at the best example from Bingham’s career: the Fugitive Slave Act of 1850.  (BTW, I like this picture because it’s quirky–Bingham in retirement with a top hat, standing with bicycle guy).

The Compromise of 1850 was very controversial among abolitionists.  They were particularly incensed the new Fugitive Slave Act, which strengthened the protection given to slaveowners in exchange for admitting California as a free state.  Many in the North argued that this law was unconstitutional or should be met with civil disobedience.  What was Bingham’s view?

In November 1850, a political meeting was held in Cincinnati (where he was living at the time) to discuss the Compromise of 1850 and consider a series of resolutions.  Here are the two critical ones:

Resolved, That we utterly condemn and will oppose all forcible resistance to the execution of the law of the General Government for the recapture of fugitives owing service or labor—that we regard such law as constitutional—in accordance with the compromise which formed the Union, and that we will sustain and enforce it by all proper and legal means, as a matter of constitutional compromise and obligation.

Resolved, That we regard any further agitation of the slave question in Congress or among the people of the States where slavery does not exist, as unwise—productive of mischief—awakening sectional animosities, and that no man who continues the agitation of such question to the disturbance of the peace and quiet of the country, is entitled to public confidence or should be elevated to any office or honor or trust either in the State or general government.

Bingham supported these resolutions criticizing anti-slavery agitators, which probably comes as a surprise given his subsequent record.  Why did he take this view? (more below the fold)

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