The Constitution instructs the President of the Senate to “open” the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson’s problem was more serious. In 1801, Georgia’s electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution’s explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.
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Information Costs in Patent and Copyright
Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.
Lyons v. Oklahoma, the NAACP, and Coerced Confessions Under the Hughes, Stone, and Vinson Courts, 1936-1949
The Supreme Court’s 1944 decision in Lyons v. Oklahoma, affirming the murder conviction of W.D. Lyons, a poor, young, black man from rural Oklahoma, failed to garner mention in any major newspaper. Now almost seventy years old, Lyons has received little attention among legal scholars and historians. But the story of W.D. Lyons offers the modern reader a window into the world of criminal justice during the Jim Crow era.
Rather than being an obscure footnote in the history of constitutional criminal procedure, or just another example of racial discrimination in the pre-civil rights era, Lyons is an important case that deserves to be revisited. Lyons presents an intriguing constitutional puzzle that provides insight into the confused evolution of coerced confessions and the Due Process Clause of the Fourteenth Amendment under the Hughes, Stone, and Vinson Courts. Interestingly, this period marks the beginning of both the doctrine and the debates that ultimately culminated in Miranda v. Arizona, a case that continues to be a source of controversy.
This Note examines the early evolution of the doctrine surrounding coerced confessions and the Due Process Clause, using Lyons as a point of departure. Lyons provides an excellent case study in that it shares many characteristics with the early Southern cases that inspired the coerced confession doctrine, yet it also marks the boundary that divides one stage of cases from the other. Finally, Lyons also casts light upon the larger jurisprudential battles that divided the Supreme Court in the 1940s and beyond.