Author: Gerard Magliocca


The Myth of John Marshall

One theme of the book that I’m working on about constitutional law during the Populist and Progressive period (1890-1910) is the way that Chief Justice Marshall’s landmark opinions were viewed at that time. I’m going to talk about this in two posts, as I think one would be too long.

So John Marshall is one of the greatest judges in our history, right?  Thus, his famous decisions have always commanded the respect of the legal community, right?  Well, not exactly.

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Article Five Petitions

In the wake of the “tea party” protests last month, several state legislatures are considering resolutions that invoke the Tenth Amendment and challenge the expansion of federal authority under the Obama Administration. As Randy Barnett correctly points out in a Wall Street Journal piece (dated April 23), this is little more than a symbolic gesture. He suggests instead that these states use their Article Five power to petition for a constitutional convention that might consider a federalism amendment.

I have a short piece on this issue that will come out this fall in Cardozo Law Review’s new online forum (De Novo). “State Calls for An Article Five Convention: Mobilization and Interpretation” ( talks about the history of these petition efforts and argues that this tactic is a useful one for reformers (liberal or conservative) even though it will almost certainly not lead to a new convention. Basically, the idea is that a large number of state legislative petitions puts political pressure on Congress, sends a constitutional signal to the Supreme Court, and is a useful way of mobilizing supporters in state races.


The Case for Sotomayor

I was not planning to say anything about the candidates to replace Justice Souter. Nevertheless, I feel compelled to do so after reading Jeffrey Rosen’s piece in the New Republic entitled “The Case Against Sotomayor.” (I’m sorry I can’t link to it here, but my home computer won’t allow me to do that for some reason.) Rosen’s negative characterization of the Judge, which is based on conversations with various unnamed lawyers, is inaccurate.

I have known the Judge for thirteen years. After my first year in law school, I was an intern in her chambers when she was a District Court judge. A few years after that, I was a clerk on the Second Circuit, where my judge sat with Judge Sotomayor on many panels and I observed oral arguments in which she was involved. And since then I have visited and spoken with her frequently on a range of issues. Thus, I feel like I have a special authority to talk about her qualifications.

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Drinking the Kool-Aid

Trademark law addresses two different interests. First, it protects consumers from being misled and reduces search costs by allowing firms to distinguish their goods on a consistent basis. Second, the doctrine secures the considerable investment that firms make in their brands by protecting them from competitors. The consumer interest is widely accepted as a goal, but the reputation one is not. Indeed, many scholars (and I include myself in that group) have criticized a trend in recent years whereby courts mouth the “consumer confusion” test of trademark infringement but reach well beyond that rationale to protect brands from other commercial uses. The same criticism applies to trademark dilution, which is attacked for creating a property right in gross for marks that is inappropriate.

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Foreign Law in U.S. Constitutional Interpretation

A litigant challenges a state statute as unconstitutional under the Due Process Clause. The Supreme Court rejects this claim in spite of powerful evidence that the statute is inconsistent with the original understanding of the Constitution. In part, they rest this conclusion on European law, which sanctions the state practice at issue and “informs” the meaning of due process. According to the Court:

“The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.”

So who wrote this internationalist claptrap? Justice Kennedy? Justice Breyer? Harold Koh?

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State Franchise Laws

Today I’m fielding last-minute questions from students about the exam, so I’ll be brief. On Monday, GM proposed its 438th restructuring plan. One sticking point is that GM has far too many dealerships given its future production (brands are being eliminated) and as compared to its competitors. The problem with cutting those excess dealerships, though, is that state franchise statutes make it very difficult for firms to close some dealerships rather than others within a state and gives dealers a cause of action for damages if they are closed wrongfully.

My question is this: Are these laws vulnerable to a Dormant Commerce Clause challenge? It seems like a plausible argument can be made that they place a substantial burden on interstate commerce, but I am unaware of any case law on the issue. I’d be interested to hear your thoughts.


George W. Bush

How should we think about George W. Bush’s Administration? This is a subject that I (perhaps foolishly) tackle in “George W. Bush in Political Time: The Janus Presidency” (, which comes out next month. In part, this is a review of superb books by Steven Skowronek and Keith Whittington, who categorize various presidents according to their relationship with the prevailing party system. After examining their framework, I try to apply that analysis to President Bush.

Consider two types of Presidents. The first inherits an existing coalition from a glorious predecessor. Examples include Harry Truman, George H.W. Bush, or Martin Van Buren. These are the “Stay The Course” leaders. Their interest is in stability, as radical change could threaten the winning formula for their party. A second type of president creates that dominant coalition. Examples here would be Andrew Jackson, Abraham Lincoln, Franklin D. Roosevelt, and (probably) Barack Obama. These are the “We Can’t Go Back” presidents. They are in the business of repudiating past practice and introducing sweeping changes that create a new set of stable first principles.

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Copyright Limits

About five years ago, I wrote an article that said, in part, that the increasing length of copyright terms would spur the development of new doctrinal proposals that would impose limits on the scope of that extended right. One example was Lawrence Lessig’s view, which was rejected by the Court in Eldred, that the Constitution barred Congress from increasing the term of an existing copyright (as opposed to a prospective extension). Other possibilities that I discussed involved borrowing some limits from trademark law, such as imposing a “commercial use” requirement or a robust “abandonment” rule.

In the most recent issue of the Harvard Law Review, Shyamkrishna Balganesh proposes another reform along these lines — the idea that copyright protection should be limited to uses that were reasonably foreseeable at the time that the work was created. Basically (though I’m oversimplifying here), the idea is that an author would not have control over the use or distribution of a work when the medium at issue was unknown at the point of creation. This would mean, for example, that someone who wrote a book decades ago could not prohibit Google from created its global commons because the Internet was not foreseeable in say, 1950.

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A Logic Puzzle

Several conclusions can be drawn from the following comparison. Which one do you take away?

1. In Grutter v. Bollinger, the Supreme Court described the admissions goals of the University of Michigan Law School (and law schools more generally) this way: “Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that that attaining a diverse student body is at the heart of the Law School’s educational mission . . . [T]he Law School’s admissions policy promotes ‘cross-racial understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races.’ These benefits are ‘important and laudable,’ because ‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’ . . . Numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’

2. . Consideration of diversity in the U.S. News and World Report Rankings: None