Browsing by Author "Magliocca, Gerard N."

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    "According to the custom of the country": Indian marriage, property rights, and legal testimony in the jurisdictional formation of Indiana settler society, 1717-1897
    (2011) Schwier, Ryan T.; Monroe, Elizabeth Brand, 1947-; Bodenhamer, David J.; Magliocca, Gerard N.
    This study examines the history of Indian-settler legal relations in Indiana, from the state’s pre-territorial period to the late-nineteenth century. Through a variety of interdisciplinary sources and methods, the author constructs a broad narrative on the evolution and co-existence of Native and non-Native customary legal systems in the region, focusing on matters related to marriage, property rights, and testimony. The primary thesis—which emphasizes reciprocally formative relations, rather than persistent conflict—suggests that Indiana’s pre-modern legal past involved an ad hoc yet highly effective process of cultural brokerage, reciprocity and inter-personal accommodation. That the American Indians lost much of their self-governing status following the period of contact is clear; however, a closer look at the ways in which nations historically defined, exercised, asserted, and shared jurisdiction, reveals a more intricate story of influence, authority, and concession. During the French and British colonial and American territorial periods, settler society adjusted to and often accommodated Native concepts of law and justice. Through a complex order of social obligations and community-based enforcement mechanisms, a shared set of rules and jurisdictional practices merged, forming a hybrid system of Indian-settler norms that bound these individuals across the cultural divide. When Indiana entered the Union in 1816, legal pluralism defined jurisdictional practice. However, with the nineteenth-century rise of legal positivism—the idea of law as the sole command of the nation-state, a sovereign entity vested with exclusive authority—territorial jurisdiction and legal uniformity became guiding principles. Many jurists viewed the informal, pre-existing custom-based regulatory structures with contempt. With the shift to a state-centered legal order, lawmakers established strict standards for recognizing the law of the “other,” ultimately rejecting the status of the tribes as equal sovereigns and forcing them to concede jurisdiction to the settler polity.
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    The Bill of Rights as a Term of Art
    (2016) Magliocca, Gerard N.; Robert H. McKinley School of Law
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    Blackberries and barnyards: patent trolls and the perils of innovation
    (Notre Dame Law Review, 2007) Magliocca, Gerard N.
    This Article provides context for the ongoing debate on opportunistic licensing (or patent troll) litigation by pointing out that the same phenomenon occurred in the nineteenth century with respect to design patents on farm tools. This previously unexplored episode shows that trolls (or sharks, as they were called then) explode when patents are extended to inventions that: (1) are cheap to acquire; (2) are hard for a defendant to substitute away from; and (3) evolve incrementally. Modern information technology and basic farm tools share these traits, albeit for different reasons. The Article then compares the remedies proposed in each era and concludes that curbing trolls through a comprehensive reform is bound to fail. A better approach would seek either to abolish software and business method patents or reduce the arbitrage spread by raising the maintenance fees charged to retain patents.
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    The Cherokee Removal and the Fourteenth Amendment
    (Duke Law Journal, 2003) Magliocca, Gerard N.
    This Article recasts the original understanding of the Fourteenth Amendment by showing how its drafters were influenced by the events that culminated in The Trail of Tears. A fresh review of the primary sources reveals that the removal of the Cherokee Tribe by President Andrew Jackson was a seminal moment that sparked the growth of the abolitionist movement and then shaped its thought for the next three decades on issues ranging from religious freedom to the antidiscrimination principle. When these same leaders wrote the Fourteenth Amendment, they expressly invoked the Cherokee Removal and the Supreme Court's opinion in Worcester v. Georgia as relevant guideposts for interpreting the new constitutional text. The Article concludes by probing how that forgotten bond could provide the springboard for a reconsideration of free exercise and equal protection doctrine once courts begin exploring the meaning of this Cherokee Paradigm of the Fourteenth Amendment.
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    The Constitution Can Do No Wrong
    (University of Illinois Law Review, 2012) Magliocca, Gerard N.
    Preserving constitutional legitimacy by holding that constitutional text can be “redeemed” from incorrect perceptions is an important theme in Jack Balkin's Living Originalism. That premise stems from the text's reference to a “more perfect union,” which encompasses an ideal that sits above doctrines of the U.S. Supreme Court at any given time. This piece explores the concept of redemption by drawing comparisons between our constitutional text and the British Crown, with a special emphasis on the influential English journalist, Walter Bagehot, and his work, The English Constitution. Exploring Bagehot's analysis of the British Crown reveals an infallibility principle similar to the constitutional text. The infallibility principle empowers government by preserving reverence. It also provides a fiction whereby the Supreme Court can make errors, but the constitutional text itself remains flawless. The comparison between the British Crown and the Constitution leads to three consequences emanating from the presumption that the Constitution “can do no wrong.” First, some things are too awful to be constitutional. Second, some things are too awful to have been constitutional. And third, some things about the Constitution are too sensitive to discuss in public. These interpretive principles exemplify the role that legal fictions must play in successful constitutionalism.
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    Constitutional False Positives and the Populist Moment
    (Notre Dame Law Review, 2006) Magliocca, Gerard N.
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    Court-Packing and the Child Labor Amendment
    (Constitutional Commentary, 2011) Magliocca, Gerard N.
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    Don't Be So Impatient
    (Notre Dame Law Review, 2013) Magliocca, Gerard N.
    This Essay for the Notre Dame Law Review's symposium on congressional gridlock argues that the current stalemate in Washington is, for the most part, the result of a divided electorate and that there is nothing that can or should be done about this aside from reforming the Senate filibuster.
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    From Ashes to Fire: Trademark and Copyright in Transition
    (North Carolina Law Review, 2004) Magliocca, Gerard N.
    This Article explores the parallels between current developments in copyright law and the evolution of unfair competition doctrine in the early twentieth century. In each case, influential segments of the legal establishment responded to a major technological upheaval by rejecting gradual reform. They argued that the existing regulatory framework was so obsolete that only a radical overhaul could address the new paradigm. In the unfair competition context, that impulse led to the creation of misappropriation, dilution, and the right of publicity, all of which reshaped intellectual property even though they did not supplant traditional principles. In copyright, a similar process is underway in the wake of the Internet Revolution that may have profound consequences. The analysis concludes by examining the relationship between the three radical unfair competition proposals and their counterparts in copyright in order to project the future of the law.