Author: Gerard Magliocca


On Feudalism

My colleague Tom Wilson, who just did a sabbatical in Scotland, told me an interesting fact today.  Feudalism was the law there until 2000.  The Abolition of Feudal Tenure Act ended vassal status and entail except for lands owned by the Crown.  This makes Scotland the last European region to get rid of feudalism.  England did so in 1290, though there were earlier attempts at reform.


State Bankruptcy

The New York Times has a front-page story today about discussions in Congress to create a way for states to declare bankruptcy and restructure its obligations to public unions and pension funds.  My own take on the problem of “too-big-to-fail” states is here.

Frankly, I’m skeptical that a statute that would end up rolling back benefits to unions can make it through Congress or would be signed by the President.


Princess’s Rights

Last week I mentioned that the Act of Succession (enacted in 1701) is the source of the Crown’s authority.  This week the Act of Succession is in the news because of the impending royal wedding.

There is an ongoing debate about whether the Act should be amended to eliminate its clear gender discrimination.  The Act provides that the eldest son of the heir to the Throne is next in line for succession.  This means that if Prince William and Kate Middleton have a daughter and then a son, the son would leapfrog his sister.  (Queen Elizabeth II did not have any brothers.)  The proposed amendment would provide that the eldest child is always next in line.

Here’s the twist: such an amendment would require the consent of all Commonwealth countries that recognize the Queen as their head of state.  In effect, that Act of Parliament would also work a change in the domestic law of those countries.  Thus, negotiations must be undertaken to secure consent from those former colonies, though of course they could refuse and start recognizing someone else as head of state (a President, for example).

This is the closest equivalent to an Article Five amendment in the British Constitution. You need support from Parliament and ratification by other legislatures.  I think that issues involving the Crown are the only ones that require this special treatment.

No word on whether Parliament will also disestablish the Anglican Church and allow Catholics into the royal line.  Gender discrimination is bad.  Religious discrimination — not so much.


What If? Symposium

I’m pleased to announce that the Indiana Law Review will hold its 2011 Symposium on “What If?  Counterfactuals in Constitutional History.”  The following are expected to attend this conference on April 1 (an appropriate day for a counterfactual event):

David Fontana, George Washington Law School

Heidi Kitrosser, Minnesota Law School

Alison LaCroix, University of Chicago Law School

Carlton Larson, UC Davis Law School

Kim Roosevelt, University of Pennsylvania Law School

Ilya Somin, George Mason Law School

Amanda Tyler, George Washington Law School

If you’re interested in attending, please contact Amanda Mulroony at


Dissertation Disease

I don’t have a Ph.D.  On balance, I think this is probably a good thing.  There is no doubt that I would have learned a great deal in such a program (no matter what the substantive focus was).  Ph.D students, though, seem to pick up terrible writing habits.  This is what I like to call the “dissertation disease” that afflicts so many books and law review articles. So what are the symptoms of dissertation disease?

1.  Excessive use of jargon.

A panelist on book publishing at the AALS Annual Meeting summed this up well by saying that “a dissertation is an exercise in showing what you know.  A book makes an argument.” One trait that I can’t stand is the use of complex terms to explain ideas when simple words or phrases will do.  The only purpose of jargon is to impress (a few) people with your knowledge.  Jargon does not help explain what you are trying to say.  My idea is that if a 2nd-year law student can’t understand what I’m saying, then I’ve failed.

2.  Too much discussion of what other people think.

Writers with Ph.D training always give themselves away by spending lots of time talking about what other scholars say rather than making their own case.  Citation to authors in the field is clearly important, and sometimes it’s necessary to refer to someone else’s work in the text.  There is no need, though, for a tour of every book written on the topic.

3.  Way too long.

I’ve posted about this before, but many people are guilty of writing papers that kill too many trees.  There is a story that when Karl Marx wrote “Das Kapital,” a friend told him that it was too long.  “I know,” Marx replied, “but people won’t take this seriously if it’s short.”  In this sense, almost all professors are Marxists.

4.  Dull writing

Lively prose is not the hallmark of a dissertation.  This may be because dissertation advisors stress formality.  It may be because their students are risk-averse and don’t want to offend anyone through the use of humor.  I’m not sure.

So my advice if you have a Ph.D is to follow Yoda’s advice and “unlearn what you have learned.”


Populism and Jim Crow

My forthcoming book (in May) on William Jennings Bryan and the Populist movement argues that constitutional law was transformed for decades by the backlash against the Populists in the 1890s.  Here is an excellent statement of that point with respect to race. See if you can figure you who said this:

“Racial segregation as a way of life did not come about as a natural result of hatred between the races immediately after the Civil War. There were no laws segregating the races then. And as the noted historian, C. Vann Woodward, in his book, The Strange Career of Jim Crow, clearly points out, the segregation of the races was really a political stratagem employed by the emerging Bourbon interests in the South to keep the southern masses divided and southern labor the cheapest in the land. You see, it was a simple thing to keep the poor white masses working for near-starvation wages in the years that followed the Civil War. Why, if the poor white plantation or mill worker became dissatisfied with his low wages, the plantation or mill owner would merely threaten to fire him and hire former Negro slaves and pay him even less. Thus, the southern wage level was kept almost unbearably low.

Toward the end of the Reconstruction era, something very significant happened. That is what was known as the Populist Movement.  The leaders of this movement began awakening the poor white masses and the former Negro slaves to the fact that they were being fleeced by the emerging Bourbon interests. Not only that, but they began uniting the Negro and white masses into a voting bloc that threatened to drive the Bourbon interests from the command posts of political power in the South.

To meet this threat, the southern aristocracy began immediately to engineer this development of a segregated society. I want you to follow me through here because this is very important to see the roots of racism and the denial of the right to vote. Through their control of mass media, they revised the doctrine of white supremacy. They saturated the thinking of the poor white masses with it, thus clouding their minds to the real issue involved in the Populist Movement. They then directed the placement on the books of the South of laws that made it a crime for Negroes and whites to come together as equals at any level.  And that did it. That crippled and eventually destroyed the Populist Movement of the nineteenth century.”

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Unincorporated Rights

In the debate over the individual mandate, there is lots of loose talk about the right of individuals to choose not to purchase a product or participate in commerce.  Of course, there is no such right, in the sense that states can (consistent with their constitutions) force you to buy things.  On the other hand, one could conceive of this as a fundamental right that is unincorporated and thus only applies to Congress.

As far as I can tell, though, there are no unenumerated and unincorporated rights.  The only unincorporated rights are in the Bill of Rights (e.g., grand jury, civil jury, the Third Amendment).  Am I wrong about that?


Federal Assassination Law

The shooting of Judge Roll and Congresswoman Giffords raises an interesting point about federal jurisdiction.  It seems obvious that this attack would be a federal crime, but that is a recent development.  Until the 1960s, the assassination of a federal official was treated as ordinary state-law murder unless it happened in Washington DC or in a federal territory. The most famous example is Lee Harvey Oswald.  Killing the President in Texas was not a federal offense in 1963, just as it wasn’t in 1901 when Leon Czolgolz shot William McKinley in Buffalo and was convicted of murder in New York.  Indeed, this is why Oswald was being held in the local Dallas jail that made it so easy for Jack Ruby to do what he did.


Anchor Babies

In response to the announcement by various state officials that they will seek legislation that denies birth certificates to children born here to illegal immigrant parents. my friend (and college classmate) Jim Ho wrote this op-ed yesterday explaining why these proposals are unconstitutional.  I agree with Jim, as I explained in this article in 2008.