Author: Gerard Magliocca


Augustus Noble Hand

The other day I had the following thought: Doesn’t Augustus Hand deserve his own biography?  Granted, there is a fair amount of material on him in Gunther’s biography of Learned Hand, but should we think of A. Hand as just L. Hand’s duller cousin? He was a highly regarded judge, and the contributed some very significant opinions in several areas, including constitutional law. And in reading through some of his prose, you can see that he was also a lively stylist, albeit more modest or formal than his cousin. Plus, I was also struck by the fact he was apparently a friend of W.E.B. Dubois (they went to Harvard together).  Anyway, I will do some posts in the coming weeks on Judge Hand.  Could be my next book. Who knows?


Gambling on Elections

I am mulling over the meaning of a curiosity that I see in different state constitutions–past and present.  Many states say that anyone who bets on an election is ineligible to vote in that election.  For example, Article Two, Section Three of the New York Constitution says:

“No person who shall receive, accept, or offer to receive, or pay, offer or promise to pay, contribute, offer or promise to contribute to another, to be paid or used, any money or other valuable thing as a compensation or reward for the giving or withholding a vote at an election, or who shall make any promise to influence the giving or withholding any such vote, or who shall make or become directly or indirectly interested in any bet or wager depending upon the result of any election, shall vote at such election.”

The first part of this provision is talking about vote selling or vote rigging, but what about the last part that talks about betting or wagering?  Suppose I had made a bet at Labrokes (the major betting house in Great Britain) in August that Donald Trump would be elected President. Why should I not be able to vote in New York in that election? Sure, I’d have a financial stake in that outcome, but so do lots of campaign contributors in New York.  It’s a pretty broad definition of corruption.

I’m wondering about this in part because these suffrage restrictions on election gamblers strike me as expressing a view that is at odds with the Supreme Court’s view of campaign contribution limits, though I’m not quite sure how or why.  (This is how ideas get started though.)


Additional Thoughts on Star Athletica

I mentioned last week that I did not think highly of the Supreme Court’s opinion in the “cheerleader uniform” copyright case. Let me explain why and then make some observations about how the case may be received by the lower courts.

My problem with the opinion is that it approaches the question in a formal (dare I say wooden) way. Aside from the comment in its first paragraph that the “line between art and industrial design, however, is difficult to draw,” the Court spends virtually no time considering the practical aspects of the case or the relationship between product design and intellectual property.  For instance, there is no discussion about how the fashion industry works, no discussion of the role that trademarks play in clothing, and no discussion about how design patents should relate to useful article copyrights other than the brief thought that they are not mutually exclusive. In other words, the difficulty that the Court identifies (and that everyone else knows about) is not actually addressed in the opinion. This does not breed confidence that the holding will stand the test of time.

One potential saving grace is that the Court expressed no opinion on the question of whether the cheerleader design was sufficiently original to merit copyright protection under Feist. Until now, Feist has pretty much been the only case that held something not copyrightable for its lack or originality. If courts start getting more design copyright claims invoking Star Athletica, they may take up Justice Breyer’s view in dissent that some of these clothing designs are obvious. I’m not sure that would be a great development, but the pressure in that direction could be hard to resist. (Along similar lines, I wonder if more of these designs might get classified as trade dress.)


Book Recommendation

The professor who influenced me the most as an undergraduate was Bruce Bueno de Mesquita, an iconoclastic political scientist who uses game theory and other behavioral tools to assess domestic and international affairs.  I was so absorbed in writing my book that I missed his new co-authored book on The Spoils of War: Greed, Power, and the Conflicts that Made Our Greatest Presidents. Here is the abstract:

It’s striking how many of the presidents Americans venerate-Abraham Lincoln, George Washington, Franklin D. Roosevelt, and John F. Kennedy, to name a few-oversaw some of the republic’s bloodiest years. Perhaps they were driven by the needs of the American people and the nation. Or maybe they were just looking out for themselves.

This revealing and entertaining book puts some of America’s greatest leaders under the microscope, showing how their calls for war, usually remembered as brave and noble, were in fact selfish and convenient. In each case, our presidents chose personal gain over national interest while loudly evoking justice and freedom. The result is an eye-opening retelling of American history, and a call for reforms that may make the future better.

Bueno de Mesquita and Smith demonstrate in compelling fashion that wars, even bloody and noble ones, are not primarily motivated by democracy or freedom or the sanctity of human life. When our presidents risk the lives of brave young soldiers, they do it for themselves.



Copyright Eminent Domain

28 U.S.C. Sec. 1498(b) provides that the United States may (in effect) convert any copyright into a compulsory license by authorizing the reproduction of a copyrighted work subject to the need to pay  reasonable compensation to the copyright owner.  Does anyone know if this authority has ever been used?  It’s hard to think of a situation where the Government would need to do this.


No Cheers for Star Athletica

Yesterday the Supreme Court issued its decision in Star Athletica LLC v. Varsity Brands, Inc., which addressed the issue of conceptual separability in copyright for useful articles (in this case, cheerleading uniforms). I’ll post about the opinion in greater detail later today or tomorrow, but for now I want to say that this is a mess of an opinion that is bound to cause a lot of confusion.


Probable Cause for an Indictment or Charge

I’m in between rounds of edits on my book, so I’m going through the stack of articles that I wanted to read but hadn’t. One was “Probable Cause Revisited,” a terrific article in Stanford Law Review. The paper persuasively argues that probable cause was not the consensus standard for charging at the Founding. Many judges who gave grand jury charges instead argued for something closer to “certainty of guilt” and some expressly rejected probable cause. This changed in the late 19th and early 20th century with the development of more sophisticated criminal trial procedures, which may have left people more confident in a relaxed charging standard.  (Maybe, the article concludes, we should reconsider the probable cause standard in light of our era’s reliance on plea bargaining.)

One thing the article made me think of was whether the presence of the probable cause standard in the Fourth Amendment played a role in its adoption into the Fifth Amendment’s Grand Jury Clause or the state information procedures. There is no reason why this must have occurred, of course, but I wonder to what extent there is “off the rack” borrowing. In other words, the presence of “probable cause” in the Constitution may have exerted a certain gravitational pull towards that standard.  (In turn, I wonder why probable cause was the standard used for warrants, though I’m sure many have answered that question.) I was trying to think of other examples, but I can’t other than the opposite fact that three-fifths will probably never be used again as a constitutional fraction because that was used in the Three-Fifth’s Clause pertaining to slavery.


Justice Jackson and Originalism

Supreme Court confirmation hearings are full of rituals, and one of the recent ones is praise for Justice Jackson’s concurring opinion in The Steel Seizure Cases. (Judge Gorsuch called the opinion “brilliant” earlier in the day.) I find this attitude curious for a couple of reasons.  First, until 1981 the Jackson concurrence was not seen as anything special, and I’m not sure how or why that changed. Second, I’m not clear whether the concurrence matters in real cases–it seems like something people pay lip service rather than something they use. Third, the Jackson opinion contains a rather acerbic criticism of originalism:

“A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

Strange that a self-professed originalist would think the opinion containing this passage is brilliant.



Stop Citing Trump’s Campaign Statements

Some recent judicial opinions on the President’s immigration Executive Orders have cited or referred to statements that he made as a candidate about immigration policy. I hope that this practice is rejected soon, as it’s terrible.

The problems with relying on political statements in interpreting an executive are greater than the well-known criticisms of using legislative history to interpret a statute.  First, candidates say many contradictory things on an issue depending on their audience and on the news flow. Trying to make sense out of that is an almost impossible legal ask. Second, statements made during a campaign are not necessarily connected with an executive order. Legislative history at least has the virtue of being part of a formal process that culminates with a statute. Third, if public comments by a candidate are fair game, then why not private comments? (Say, a leaked tape of statements made to a group of donors? Or Richard Nixon’s presidential tapes?) Finally, it’s worth pointing out that candidates lie sometimes–how is that supposed to be taken into account?

Judges are certainly aware of what was said in the campaign–they do watch the news.  But relying on that as authority is ill-advised.