Profile

Gerard N. Magliocca

Distinguished Professor
Samuel R. Rosen Professor of Law

Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 205
530 W. New York Street
Indianapolis, IN 46202-3225

Phone: (317) 278-4792
Fax: (317) 278-4785
E-Mail: gmaglioc@iu.edu

SSRN

Education

B.A., 1995, Stanford University
J.D., 1998, Yale Law School

Courses

Torts, constitutional law, intellectual property, legal history, admiralty

Bio

Gerard N. Magliocca is a Distinguished Professor and the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of five books on constitutional law. His next book will be about Justice Robert Jackson’s landmark concurring opinion in Youngstown Sheet and Tube Company v. Sawyer.

Professor Magliocca received his undergraduate degree from Stanford and his law degree from Yale. He joined the faculty in 2001 after two years as an attorney and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. In 2008, Professor Magliocca held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. From 2019-2021 he was a Fellow at the Washington Library at Mount Vernon from 2019-2021.

Publications

(SSRN: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=398388)

Books and Chapters

• Washington's Heir: The Life of Justice Bushrod Washington (Oxford U. Press, 2022).
• "Yankee Ingenuity," in Our American Story: The Search For a Shared National Narrative (Potomac Books, 2019).
• "Constitutional Change," in The Oxford Handbook of the U.S. Constitution (Oxford Univ. Press 2015).
• The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights (Oxford Univ. Press 2018).
• American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (NYU Press 2013)
• The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale Univ. Press 2011)
• Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (Univ. Press of Kansas 2007) (Paperback ed. 2011).

Law Review and Journal Articles

• The Untold Story of Robert Jackson's Youngstown Concurrence, 50 J. of Sup. Ct. Hist. --- (forthcoming 2025).
• Background as Foreground: Section Three of the Fourteenth Amendment and January 6th, 25 U. Pa. J. Const. L. 1059 (2023)
• "Not A Lawyer's Contract:" Reflections on FDR's Constitution Day Address, 1 J. of American Const. Hist. 43 (2023)
• "Commonly Estimated As One Judge": Bushrod Washington and the Marshall Court, 47 J. of Sup. Ct. Hist. 7 (March 2022).
• Robert Jackson's Non-Delegation Doctrine, 25 Green Bag 2d 95 (2022)
• Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87 (2021).
• Winston Churchill on the American Constitution, 94 St. John's Law Review 715 (2020).
• Rediscovering Corfield v. Coryell, 95 Notre Dame L. Rev. 701 (2019).
• Buried Alive: The Reboot of the Equal Rights Amendment, 71 Rutgers L. Rev. 633 (2019).
• Our Unconstitutional Reapportionment Process, 86 George Washington Law Review 774 (2018).
• A Faction of One: Revisiting Madison's Notes On The Constitutional Convention, 43 Law and Soc. Inq. 267 (Winter 2018).
• The Bill of Rights As A Term of Art, 92 Notre Dame L. Rev. 231 (2016).
• The Legacy of Chief Justice Fortas, 18 Green Bag 2d 261 (2015).
• Patents, Meet Napster: 3D Printing and the Digitization of Things (with Deven Desai), 102 Geo. L.J. 1691 (2014).
• The Gold Clause Cases and Constitutional Necessity, 64 Florida L. Rev. 1243 (2012).
• Reforming the Filibuster, 105 Nw. U. L. Rev. 303 (2011)
• Court-Packing and the Child Labor Amendment, 27 Const. Comment. 455 (2011).
• Patenting the Curve Ball: Business Methods and Industry Norms, 2009 BYU L. Rev. 875
• Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? 94 Minn. L. Rev. 102 (2009)
• * George W. Bush in Political Time: The Janus Presidency, 34 Law & Soc. Inq. 473 (Spring 2009)
• Huey P. Long and the Guarantee Clause, 83 Tulane L. Rev. 1 (2008).
• Indians and Invaders: The Citizenship Clause and Illegal Aliens, 10 U. Pa. J. Con. L. 499 (2008).
• Blackberries and Barnyards: Patent Trolls and the Perils of Innovation, 82 Notre Dame L. Rev. 1809 (2007)
• A New Approach to Congressional Power: Revisiting the Legal Tender Cases, 95 Geo. L. J. 119 (2006)
• Constitutional False Positives and the Populist Moment, 81 Notre Dame L. Rev. 821 (2006)
• From Ashes to Fire: Trademark and Copyright in Transition, 82 N.C. L. Rev. 1009 (2004).
• The Cherokee Removal and the Fourteenth Amendment, 53 Duke L. J. 875 (2003).
• Ornamental Design and Incremental Innovation, 86 Marq. L. Rev. 845 (2003).
• Preemptive Opinions: The Secret History of Worcester v. Georgia and Dred Scott, 63 U. Pitt. L. Rev. 487 (2002).
• One and Inseparable: Dilution and Infringement in Trademark Law, 85 Minn. L. Rev. 949 (2001).
• Veto!: The Jacksonian Revolution in Constitutional Law, 74 U. Neb. L. Rev. 205 (1999).
• The Philosopher’s Stone: Dualist Democracy and the Jury, 69 U. Colo. L. Rev. 175 (1998).

Other Publications

• "What the Supreme Court Should Not Do in Trump's Disqualification Case," The New York Times, January 5th, 2024
• "Criminal Punishment is the Wrong Idea. Use the 14th Amendment On Trump," (with Bruce Ackerman), The Washington Post, December 27, 2022.
• "Biden vs. Trump: The Makings of a Shattering Constitutional Crisis" (with Bruce Ackerman), Politico, February 1, 2022.
• "Impeachment Won't Keep Trump From Running Again. Here's A Better Way." (with Bruce Ackerman), The Washington Post, Jan. 11, 2021.
• "Heart of the Constitution: The Bill of Rights," American Heritage (Winter 2020)
• Symposium, The Constitution Can Do No Wrong, 2012 Ill L. Rev. 723.
• Symposium, "Too Big To Fail" States, 43 U. Conn. L. Rev. 1089 (2011).
• State Calls for an Article Five Convention: Mobilization and Interpretation, 2009 Cardozo Law Review, De Novo 74.

Electronic Publications/Products

• "Should President Trump Be Allowed on the 2024 Ballot?" A Podcast by the National Constitution Center (with Josh Blackman) in January 2024.
• "Amarica's Constitution," podcast on Section Three of the Fourteenth Amendment (with Mark Graber) in November 2023.
• "Section Four of the Fourteenth Amendment," podcast for the National Constitution Center (with Eric Foner) in February 2023.
• "The January 6th Insurrectionists Do Not Have Amnesty," Jurist (April 13, 2022).
• Lawfare Podcast: "Dan Hemel and Gerard Magliocca on Section Three of the Fourteenth Amendment," in January 2021.
• "Clauses and Controversies: The Gold Clause Cases," podcast released in August 2020.
• "Incorporation, or the Lack Thereof," a podcast by the Institute for Justice.
• "Bound By Oath: The Fight For the 14th," a podcast by the Institute for Justice.
• "John Bingham: The Father of the Fourteenth Amendment," a podcast for the National Constitutional Center (with Kurt Lash) on August 9, 2018.

Work in Progress

• The Last Constitutional Convention: Senator Birch Bayh's Subcommittee on Constitutional Amendments
• Zone of Twilight: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case (Oxford Univ. Press, forthcoming 2025).
• "Right in Theory, Wrong in Practice:" Women's Suffrage and the Reconstruction Amendments
• Conscription in Constitutional Argument

Presentations

• "Washington's Heir," delivered at the United States Supreme Court on May 1, 2024
• "Winston Churchill on the American Constitution," delivered at Westminster College on March 23, 2024.
• "Washington's Heir: The Life of Justice Bushrod Washington," given as a lecture at Bellarmine College in February 2024.
• "Trump v. Anderson," delivered virtually to the ACS Chapter of the University of Michigan Law School on February 5, 2024.
• "New Boundaries in Tort Law: Driverless Cars," delivered at the University of Bologna on April 4, 2023.
• "Section Three of the Fourteenth Amendment," presented as part of a virtual panel held by the American Constitution Society on March 2nd, 2023.
• "Background as Foreground: Section Three of the Fourteenth Amendment and January 6th," presented at the University of Pennsylvania Constitutional Law Journal Symposium on the 14th Amendment.
• Presented "Amnesty and Section Three of the Fourteenth Amendment" to the Reconstruction and the Constitution Workshop at the University of Iowa Law School on October 12, 2022.
• "Bushrod Washington In Philadelphia: 1782-1829," delivered to the Historical Society of Pennsylvania on May 11, 2022.
• "Washington's Heir: Bushrod Washington in Richmond," presented at John Marshall House and the Library of Virginia on May 12, 2022.
• Participated in a Panel for the NYC Bar Association on "Ensuring Accountability for Political Violence: Lessons From January 6th" in May 2022.
• "Bushrod Washington on the Marshall Court," a faculty workshop at Villanova Law School on April 5, 2022.
• "America's Early Justices and How They Shaped the Supreme Court," a virtual panel with Maeva Marcus and Walter Stahr held by the National Constitution Center in April 2022.
• "Washington's Heir: The Life of Justice Bushrod Washington," delivered at Mount Vernon in May 2021.
• "Washington's Heir: The Life of Bushrod Washington," presented to the NYU Legal History Colloquium on October 26, 2020.
• "Ogden v. Saunders and the Marshall Court," presented to the University of Wisconsin Law School on September 16, 2020.
• "The Fourteenth Amendment at 150 Years," delivered as part of a panel at the Antonin Scalia Law School on September 21, 2018.
• "The Heart of the Constitution," delivered at the National Archives in January 2018.
• "The Heart of the Constitution," delivered at the National Constitution Center on December 15, 2017 (aired on C-Span2)
• "John Bingham v. Thaddeus Stevens on the Readmission of Tennessee to the Union," presented at the University of the South on September 16, 2016.
• "American Founding Son," presented at the National Constitution Center on October 4, 2013.

Other Activities

• Presented Expert Testimony in a Ballot Eligibility Challenge to Donald J. Trump held in Maine on December 15, 2023
• Presented Expert Testimony in a Ballot Eligibility Challenge to Donald J. Trump held in Colorado on November 1, 2023.