Author: Gerard Magliocca


The Tenth Amendment and the Bill of Rights

When I’m not grading exams, I’m working on the new book about the Bill of Rights.  (On Chapter 4 at the moment.)  One issue that I’m still working through is when the issue of whether the Bill of Rights was the first eight, the first nine, or the first ten amendments was settled in favor of ten.  I have yet to identify a magic moment where ten emerged victorious, though I did find the following passage interesting.  It was a dissenting report by segregationists to the Democratic National Platform in 1960:

The Tenth Amendment to the Constitution of the United States is a part of the Bill of Rights equal in force and dignity to the First Amendment and all of the other amendments which comprise the Bill of Rights. When a court or a legislative group or an executive disregards or violates the rights of a state under the Tenth Amendment, thereby the rights of the people under the First Amendment to worship, to read, to speak, to print are jeopardized. A mere majority which can today ignore the Tenth Amendment can tomorrow ignore the First Amendment and all the others.

Of course, this was a dissenting position, but it was the clearest effort made up to that time to prop up the Tenth Amendment through the Bill of Rights.  I have yet to find the critical source that made it into the majority position.  You would think it would be from something President Reagan said, but I’m not finding anything.  Nor does there seem to be a Supreme Court case on point.


Copyright on a Useful Article

I want to discuss a major copyright case that the Court added to its docket for the Fall.  The question presented in Star Athletica, LLC v. Varsity Brands, Inc. is “What is the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act?” This is an issue that has long vexed the circuit courts and is exactly the type of case that the Court should be taking while it’s a man down.

Here is the problem.  Copyright law says that functional/useful items generally cannot get protection. This makes sense because they are only supposed to get patents given the costs that exclusive rights in those sorts of products impose. But what if something has both functional and aesthetic features? Take a belt buckle.  It is functional in the sense that it holds up your pants.  But a jeweled belt buckle might well be an adornment that is more properly considered artistic and thus copyrightable.  How do you know?

Courts have put forward several possible tests.  One says that the issue is whether the item is primarily aesthetic or functional.  Another looks to the intent of the designer.  A third simply considers the totality of the circumstances. A fourth suggests that the aesthetic aspect must be “conceptually separable” from the functional one and able to stand on its own as a work.  And so on.

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More on Swing Justices

A couple of weeks ago I posted that we are probably reaching the end of Justice Kennedy’s reign as the “swing Justice,” and perhaps the end of any one member of the Court being that person.  I just wanted to follow-up with some additional thoughts.

The concept of a “swing Justice” appears to be a product of the twentieth century.  In the nineteenth century, there were times where a particular Justice was a leader of the Court (think John Marshall), but that was different from saying that this person was the median vote. Owen Roberts was the first swing Justice in the modern sense (from 1932 to 1937), but the first one who was given that title was Byron White, in a 1972 New York Times profile. After that the term became a lot more popular.  Why I’m not sure.


The Secret Life of John Roberts

188px-John_RobertsIlya Shapiro and Randy Barnett are making the argument that the Chief Justice’s 2012 opinion upholding the Affordable Care Act contributed to the rise of Donald Trump.  I don’t agree with their analysis, in part because causation in history is almost never so simple or direct.  Their hypothesis, though, does lead me to ask the following question: Why are some people still so angry about that opinion? Of course the stakes were large, but you could say the same about many controversial 5-4 cases. And the Chief Justice’s opinion may be flawed, but no more so than many others.

I submit that the answer is that we know (through leaks after the decision) that the Chief Justice changed his vote sometime after conference. This must be immensely frustrating to the people who represented the challengers of the ACA and their supporters. They were so close to winning. Or they did win and then that was taken from them. That often leads them to suggest motives outside of the record that drove the Chief Justice’s switch–wanting to be popular at cocktail parties, concern about the Court’s image, the statements made by Democrats after the oral argument, etc.

There is, though, an irony in this attitude. How the Chief voted in conference is an extra-judicial fact that is irrelevant to the opinion. Critics of the opinion are therefore largely basing their dismissal of the opinion on something outside of the four corners of the case as they accuse the Chief Justice of basing his judgment on something outside of those same four corners. Pot meet kettle.



A Right to Write-in

I voted in the Indiana primary on the Republican side (hint:  It wasn’t for Trump or Cruz) and this thought struck me as I looked down ballot.  In many races, the party nominee was unopposed and there was no write-in option available.  Should I, as a voter, have the right to vote for whomever I want through a write-in?

There is no doubt that states can regulate who appears on the ballot, as there could be significant administrative problems if anyone who wanted to be on at any time before the election could get on.  Are there similar issues with respect to write-ins?  Not really.  Having a write-in option does make counting the votes a little more difficult, but that seems pretty insubstantial.  On the other side, you can make a strong argument that voters should have the option of voting for someone not on the ballot as part of their freedom of choice.


Federal Trade Secret Law

I just wanted to note that Congress has passed a new federal trade secret remedy, which the President intends to sign into law.  Who says that nothing gets done in Washington.  (Though I doubt that this is a good move.)  The Act does not preempt state trade secret law, so it remains to be seen how much of a role the new federal remedy will have.


John Quincy Adams

John_Quincy_AdamsI want to give a big thumbs-up to the new biography of John Quincy Adams by John Traub entitled “John Quincy Adams: A Militant Spirit.” Part of the book is a superb diplomatic history of the United States, as Adams was our Ambassador in Holland, Prussia, Russia (during Napoleon’s invasion), and Britain, along with serving for eight years as Secretary of State.  The discussion of Adams’ tenure in Congress, where he became the leader of the anti-slavery forces, is also riveting and well worth your time.  I came away with a more positive impression of Adams.


Please Pay Me My Blackmail

I’m fascinated by the lawsuit filed against Dennis Hastert by one of his alleged sexual abuse victims for breach of contract. In essence, the suit says that Hastert agreed to pay him around $3 million in compensation but only paid 1/2 of that (due to the feds catching on to the former Speaker’s attempt to structure his payments to avoid detection.)  Now the plaintiff wants the other half.

I don’t how this suit can succeed (though the point of this is probably just to make clear what Hastert allegedly did).  If this is understood as a payment of blackmail, then the contract cannot be enforced as a matter of public policy.  How can it not be construed that way?  If Hastert had refused to pay, what would the plaintiff have done?  Nothing?

Granted, if the allegations against Hastert are true, then he’s an awful, awful human being.  And perhaps blackmail should not be unlawful in circumstances such as this.  But it is, and thus I don’t think that a failure to pay can be converted into a contract action.


Why No Rearguments?

Two months after Justice Scalia’s death, we can see a pattern emerging on how the Court is treating cases on which they are divided 4-4.  First, they are making an effort to find a majority through compromise, which is fine as far as it goes.  Second, when that proves impossible, they affirm by an equally divided Court.

What the Court is not doing is putting over cases for another argument next Term.  Sometimes a delay of a year or more might simply be intolerable for the parties to the litigation or for some other reason. Perhaps the Court is also reluctant to put cases over during this Term–they might be more willing to do that in the Fall since a new Justice will surely be in place by next Spring.  And I can also see that the 4 Justices who think they will lose when a new argument occurs may prefer a draw.  Still, I would think that there should be at least one 4-4 case that merits reargument.