Author: Gerard Magliocca


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.”

Read More


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.


The Senate Reform Proposal

Yesterday the Democrats introduced their cloture reform package, and I’d give it about one cheer.  Here’s a brief rundown on what the Majority Leader proposed.

1.  End secret holds.  Good idea, though it won’t matter all that much.

2.  Reduce the maximum number of hours for debate on nominees once cloture is invoked from 30 to 2.  Also worthwhile, especially as I wrote an op-ed arguing for this change back in October. (No doubt that left them all quaking in their boots.)  This could make a difference for some judicial and executive nominations.

3.  Remove the need to invoke cloture on a motion to proceed.  Fine, though modest.

4.  The final item is the much-vaunted “talking filibuster” change.  Unless I’m missing something, this is basically a joke.  The proposal is that if a cloture petition fails, then the minority must hold the floor as long the item that was the subject of the cloture vote is the pending business.

This is no different from the current rules–it’s entirely symbolic.  If the Majority Leader does not withdraw a filibustered bill or nomination as the pending business, he can force the minority to hold the floor continuously.  The point is that he almost never chooses to do that.  The new “rule” doesn’t make that more likely.  It doesn’t say, for example, that the filibustered measure must stay on the floor for a certain period of time after cloture is rejected.  That would have more teeth.


Blocking Patents and Political Protest

I said before the holidays that I would do a series of posts about the free speech implications of patents.  One way to think about this issue is that a patent owner could restrict the use of a device or a tactic to those with an “approved” message (for example, liberals).  It’s a kind of viewpoint discrimination, to use the First Amendment parlance.

Another way to think of this is that a patent could be acquired for the sole purpose of stopping certain kinds of expression.  You could call this content discrimination or a sort of blocking patent.  I think this is really troubling once it’s combined with the expansion of patentable subject matter to business methods.  Here is an illustration:

Imagine that in 1960 business methods were patentable.  A segregationist group that is thinking outside of the box decides to apply for a patent on sit-in protests.  The patent is granted.  When the civil rights activists in Greensboro start their demonstration (at the lunch counter depicted above at the Smithsonian), they are sued for infringement.

Today, this is not an implausible scenario.  The question is not whether such a patent would be upheld by a court (probably not on non-obviousness grounds).  The question is whether a patent examiner could be convinced to issue the patent (probably yes).  That patent could then be used to bankrupt and harass people who are trying to exercise their First Amendment rights.

Interestingly enough, something analogous did happen in the 1960s.  Libel law, which is after all private law, was used in New York Times v. Sullivan to chill civil rights speech. The Court responded by holding that the enforcement of libel law by courts constituted state action for First and Fourteenth Amendment purposes.  If patent law had been used in the way that I’ve described above, would there have been a similar result?


The Common Law and the Monarchy

Greetings from San Francisco and the AALS Conference!  I went to Alcatraz this morning.  Fortunately, I was allowed to leave.

I like to ask my Torts students what judges use as their authority for making common-law decisions.  The answer is a statute.  Every state has a law that either adopts the common law of England as of July 4, 1776 or the common law as developed when the state was a territory.  In this sense, all common-law is statutory interpretation.

You can make a related point about the Crown.  The source of Elizabeth II’s right to reign is the Act of Settlement (enacted in 1701), which was designed to resolve the succession after the childless Queen Anne died.  Among other things, it bars any Catholic from being the monarch.  Thus, the Queen is really nothing more than the head of an administrative agency with a special religious test attached and without the Chevron deference.



One of the main objects of legal theory is to distinguish formal from operational authorities.  Not every case, of course, is equal.  Likewise, what influences courts is not always what “ought” to.  To take a simple example, Brown v. Board of Education is more important for the law on equal protection than the original understanding of the Fourteenth Amendment, even though text should ordinarily trump case law.

I’ve been thinking about this in the context of the 1960s.  Two points stand out.  First, there is a common understanding that 1968 was a crucial year.  And for good reason–the Tet offensive, the deaths of RFK and MLK, the chaos of the Chicago convention, urban riots, and the close election of Richard Nixon over Hubert Humphrey.  Yet there is no equivalent understanding of that year’s importance in constitutional law.  The closest attempt comes from Cass Sunstein, who argues that the 1968 election was decisive in the rejection of constitutional welfare rights.

Second, the 1960s was by far the briefest “constitutional generation,” as I use that term in my work.  Most of those periods (e.g., Jacksonian Democracy, McKinley Republicans), last about thirty years.  The Great Society/Civil Rights Era, though, basically started in 1964 with Lyndon Johnson’s landslide and ended in 1980 with Ronald Reagan’s victory. Why? The Vietnam War was probably a factor.  The realignment of the South created by the Voting Rights Act was another.

It is hard, though, to ignore the importance of the assassinations of two great leaders of the 1960s generation (three if you count JFK’s death).  The other day I talked about how the shooting of Huey P. Long in 1935 fundamentally altered the New Deal.  Long was the Robert F. Kennedy of his era–he died at 42 and was seen by many as the great champion of the poor.  How would the 1970s and 1980s, for example, have looked different if RFK and MLK had lived?  Maybe the answer is not at all, but it is worth considering.

This is my last post for the year.  Enjoy the holidays!