Author: Gerard Magliocca


Promising Official Jobs for Support

192px-Dwight_D._Eisenhower,_official_photo_portrait,_May_29,_1959During the presidential campaign there has been some discussion of a provision in federal law (18 U.S.C. § 599) that bars candidates from promising jobs to garner support. I’m not clear whether this provision applies to presidential candidates, but if it does I’m not sure why it should.

History is replete with situations where presidential candidates did exactly this to either get the nomination or win an election.  John Quincy Adams and Henry Clay in 1825 (Secretary of State), Dwight D. Eisenhower and Earl Warren in 1952 (the Supreme Court), and candidates who offered the vice-presidency to win over convention delegates for support. (Ronald Reagan, for example, in 1976). I don’t see why any of this should be a crime.

While I’m on the subject, I think it would be great if candidates would name some key Cabinet members in advance, much as you see a “shadow Cabinet” in parliamentary countries.



State Antitrust Law

Here’s a topic that came up in a faculty workshop the other day.  What does state antitrust law do?  The federal antitrust statutes do not preempt state law.  Large mergers are scrutinized by state AGs for compliance with their state statutes.  Yet the state statutes are all virtually identical to the federal ones, and it appears that states in this area do nothing more than seek to extract rent as the price of not seeking to block or delay a corporate transaction.

Could state law being doing more in this respect?  Should one state amend its statute as an experiment?  If so, then how?  Or should Congress conclude that state antitrust law is a fiction and actually preempt those statutes?  Thoughts?


A Senate Executive Order

I want to try to draw an analogy between the Senate’s refusal to give Judge Garland a hearing and President Obama’s use of an executive order to implement immigration reforms.

What is the difference between an executive order and a statute? That’s pretty obvious–the former does not bind the next President while the latter does.  What is the difference between the Senate’s refusal to vote on a Supreme Court nominee and a statute that eliminates a vacant seat?  The same thing.

Here’s the next thing. One objection to President Obama’s executive order on immigration is that he lacks the statutory authority to do what he did.  (The Supreme Court will take that up later this month.)  Another complaint, though, is that the order is legal but that a President should not address such a sensitive and important question unilaterally.  He has a duty, you might say, to work with Congress. For the Senate’s inaction on Judge Garland, the argument is similar.  The Senate has the power to not act, but that on such an important matter they have a duty to work with the President by acting.

In both cases, though, the “duty” is just political.  If the President thought that taking unilateral action on illegal immigration would be politically harmful, he wouldn’t have done it.  The same is true for the Senate Republicans now.  We’ll see if they are right.


Rule of Recognition for Party Nominations

There are many scenarios that could play themselves out at the Republican National Convention this July, but here is one that I thought I’d flag.  Suppose the loser claims that he was cheated out of the nomination by a manipulation of the rules, questionable rulings on delegate credentials, etc.  A lawsuit challenging the official result would almost certainly go nowhere, but . . .

How does a state official decide who is the Republican nominee for President?  This is almost always a ministerial task, but what if the loser argues to, say, the Secretary of State of Florida that he was the real winner of the nomination and should appear on the ballot.  (Kind of like the medieval period where there were two Popes each claiming that the other was not legitimate.) Does that Secretary of State have the discretion to decide who won?  If so, how would she decide?  And if that decision were challenged by another candidate, on what basis would a state court overturn that decision?



Viewpoint Discrimination in IP

Here’s a question that came up in a panel that I was on last week on some intellectual property issues. Suppose somebody makes a movie that contains completely loathsome content.  Let’s say the film seeks to justify racism, sexism, or you-name-it ism.  I would venture to say that nobody would argue that the creators of such a movie could be denied a copyright in their work.  That’s true even for child pornography, though there the copyright would be of little or no value because distribution or possession is a crime.

Why, then, does federal trademark law permit the PTO or a court to refuse or invalidate a registration on the grounds that the mark is equally offensive?  The Federal Circuit en banc recently held in In re Tam that this authority was unconstitutional, and I suspect that the Supreme Court will take this case and affirm.  But I’m curious to hear what the counterargument is? Are marks different from copyrights for purposes of First Amendment analysis?


Federal Trade Secret Protection

Yesterday the Senate unanimously passed a statute creating a federal cause of action for the violation of trade secret.  I do not know what the prospects are for this legislation in the House, but I want to express my opposition to the bill.

In general, I take a dim view of federal statutes that seek to take over regulation traditionally handled by the state common law.  There are situations where that is warranted, but this is not one of them.  Trade secret protection is in place in every state, and there is no reason to think that this system is inadequate.

Naturally, companies often prefer one national standard to many state standards, but in my view that does not justify federal action.  An article from Reuters commenting on the bill stated that trade secret cases are currently “relegated to state courts,” which is not the way I would describe federalism but does accurately describe the attitude behind the statute from Republicans and Democrats.

I hope the House decides not to take up this legislation.



Patent Pending

Here’s a question that occurred to me when I was browsing the other day. What is the point of putting “patent pending” on an item for consumers? This gives notice that if a patent is granted then infringement liability may relate back to the use of the item in question, but that is irrelevant to the average consumer.  Is the point of “patent pending” to mislead some consumers into thinking this means “a patent will be granted?”  Does patent pending just sound better than not saying anything about that?  It seems like a fact that only investors would care about.


“Hamilton” As A Derivative Work

240px-Hamilton_Alexander_Portrait_10_dollar_banknoteHere’s a question I was batting around with someone the other day:  Should the musical “Hamilton” be considered a derivative work of Ron Chernow’s biography of Hamilton?  Just to be clear, Chernow is not making this claim. But the creator of the musical, Lin-Manuel Miranda, says that he was inspired by reading Chernow’s book, and the musical makes free use of Chernow’s research.

I can think of a few reasons why you could say no.  One is that the musical is based on facts about Hamilton’s life that are in the public domain (except when Miranda uses poetic license).  This is different from a musical about a work of fiction or one that uses an author’s expression.  Second, the musical is transformative to such an extent that you might consider the production (or a subsequent movie) to not be a derivative work.

On the other hand, if you look at my contract for the Bingham biography, it refers to derivative works including “presentation in dramatic form or recitation for stage, motion pictures, film, radio, television . . .” and so on.  Maybe a musical isn’t a “dramatic form or recitation,” and of course contractual language does not control the meaning of a derivative work in the absence of contract, but this does seem to contemplate stage productions of a non-fiction book.

And if Mr. Miranda is reading CoOp, Bingham would be a great subject for a Broadway show.  Failing ticket, can you get me a ticket to “Hamilton?”  I’m dying to see it live.


Upcoming Event in Philadelphia

In May, I’ll be participating in a panel at the National Constitution Center to mark the 150th Anniversary of the adoption of the Fourteenth Amendment by Congress.  This event is open to the public and will include several notable names.  If you’re interested in attending, here is the link.


The End of the Swing Justice

240px-IngamozgasThis is an idea that I’m going to do a series of posts on because I’m thinking about the topic for an article.  Let’s start with this question:  Suppose Judge Garland is confirmed to the Supreme Court.  Who would then be the swing justice in ideological cases?  The answer, I submit, is nobody.  In any given case it could be Garland, Breyer, Ginsburg, Kagan, or Sotomayor.  And I think this will be a good thing.

We have lived for a generation in a world where there was clearly a swing justice. For the past ten years it’s been Justice Kennedy.  Before that it was Justice O’Connor and sometimes Justice Kennedy.  Before that it was Justice Powell.  You’d have to go back to the mid-1970s to find a time where there wasn’t a single person who played this pivotal.

The rise of the swing Justice did considerable damage to constitutional law.  First, it gave too much power to that one person. Second, briefs and opinions were unduly influenced by the idiosyncratic views of that person rather than by the doctrine.  (Obergefell is a good example.) Both of these effects undermined the rule of law within the Court.

Moreover, the notion of a swing Justice is a distinctly modern one.  Until the 1930s, nobody would have understood that idea because the Court operated much more by consensus.  Indeed, my research suggests that the term was even used until the 1960s.  More on that another time.