Category Archives: United States Supreme Court

The supremely expensive Supreme Court Reporter Advance Sheets Service

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Our friend Carl Malamud just sent out a tweet:

If law librarians remain content to be purchasing agents, law libraries will die. *do* something! talk is easy, action requires effort.

Carl’s tweet arrived while I was reviewing our latest West monthly invoice.  I see that the Supreme Court Reporter advance sheet subscription has jumped up 34% from $ 547 last year to $ 730.69, and that’s with a $ 120.83 “Product Dependency Discount” (whatever that is).  Apparently the full sticker price for this subscription is $ 851.52.

I remember well when professors would sit in the faculty library,  smoke their pipes and read the advance sheets.  But those days are long, long gone.  Arguably SCOTUSblog.com and its wiki have more up-to-date information than the West advance sheets.  And SCOTUS itself does an admirable job of posting opinions.

Isn’t this service really quite obsolete?  If you think otherwise, I would welcome comments posted as we mull over whether or not we will cancel.

Source of Information or ‘Dog and Pony Show’?: Judicial Information Seeking During U.S. Supreme Court Oral Argument, 1963-1965 & 2004-2009

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Source of Information or ‘Dog and Pony Show’?: Judicial Information Seeking During U.S. Supreme Court Oral Argument, 1963-1965 & 2004-2009

by James Cleith Phillips (University of California, Berkeley – School of Law) and Edward Carter (Brigham Young University)

Santa Clara Law Review, Vol. 50, pp. 101-203, 2010

Abstract:

Scholars and lawyers have long debated what role, if any, oral argument plays in the U.S. Supreme Court‘s decision-making process. While some have attempted anecdotally to determine whether or not Justices use oral argument to gather information in order to decide a case, few have attempted to investigate oral argument empirically. Additionally, no scholar to date has specifically measured the levels of information-seeking behavior during oral argument of individual Justices. Finally, there have been few studies attempting to quantitatively compare oral argument behavior in different time periods. This study attempts to address such deficiencies in Supreme Court scholarship.

Source: LSN Experimental & Empirical Studies Abstracts, Vol. 10, No. 84: Oct 12, 2009

Last days of the Law Lords

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July 31, 2009  is the last day that the law lords will work at the House of Lords. The new UK Supreme Court should be up and running soon in the fall.  Curiously, with the end of the House of Lords’ judicial function, the U.S. Supreme Court is now one of the oldest  unchanged courts of last resort.

Coverage of the end of the era for the Law Lords

From Law Lords to Supreme Court http://news.parliament.uk/2009/07/from-house-of-lords-to-supreme-court/ 

Farewell to the law lords http://business.timesonline.co.uk/tol/business/law/article6731018.ece?&EMC-Bltn=BGLA5B

House of Commons Report on Constitutional Reform & Renewal , July 2009 http://www.publications.parliament.uk/pa/cm200809/cmselect/cmjust/923/923.pdf

A Potted History of the Law Lords http://news.bbc.co.uk/2/hi/uk_news/8176958.stm

Digging up a discredited precedent

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Intriguing item from the “national treasure” (called such by Rachel Maddow) SCOTUSblog:

Digging up a discredited precedent

Tuesday, June 9th, 2009 3:07 pm | Lyle Denniston |

Sometimes, it is a mystery how a prior Supreme Court decision – not well known except to real insiders - is dug up, perhaps by a law clerk, and given new notoriety.  Such has been the fate of U.S. v. Halper, a constitutional ruling that stood for less than nine years until it was largely cast aside as “ill considered” and had “proven unworkable.”

Chief Justice John G. Roberts, Jr., used Halper in dissent on Monday to flay a majority for another ruling that he clearly deemed ill considered and unworkable.  Halper’s fate, he said, was “a cautionary tale,” and added: “I believe we will come to regret this decision as well.”  He was writing for the dissenters in Caperton v. A.T. Massey Co. (08-22), in which the majority sought to lay down a variable standard on when an elected judge is constitutionally obliged to disqualify from participating in a case involving a political benefactor.

The jurisprudential linkage between Halper and Caperton, however, was not obvious.  In fact, Halper is not mentioned in the briefs in Caperton.

Someone in the courthouse must have remembered it, though.  And it may well have been not a current law clerk, but a former one.  Indeed, it may well have been John G. Roberts, Jr., the onetime Rehnquist clerk and now, of course, the Chief Justice (and the main dissent’s author in Caperton).

. . .

You can read the rest of the post here.

The Strategic Content Model of Supreme Court Opinion Writing

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“The Strategic Content Model of Supreme Court Opinion Writing”

YONATAN LUPU, University of California, San Diego – Department of Political Science

JAMES H. FOWLER, University of California, San Diego – Department of Political Science

The Supreme Court’s reasoning in a decision, including the precedent it cites in support of that reasoning, can be as significant as the outcome in determining the long-term impact of a case. As a result, the content of opinions can be used to provide important new insights into existing debates regarding judicial politics. In this article we present a strategic content model of the judicial process, which demonstrates how opinion content results from the strategic interaction between justices during the Court’s bargaining process. This is the first article to show on a large scale that the extent to which a majority opinion writer cites authoritative precedent is systematically influenced by the decisions and ideology of other justices. We find that the Court generates opinions that are better grounded in law when more justices write concurring opinions. This demonstrates that justices write concurring opinions based not just on a preference for making their opinions known, but also to influence the reasoning relied on by the majority opinion. We also show that diversity of opinion on the Court, a factor often overlooked in the political science literature, has a significant impact on the extent to which a Court opinion cites authoritative precedent. Finally, our results provide a novel test of the agenda-control and median-justice models. We find that the ideology of the median justice influences the citation of precedent in the majority opinion, whereas the majority opinion writer’s ideology does not, suggesting that agenda-setting powers are not as strong as previously claimed.

 

Source:  LSN Law & Rhetoric Vol. 2 No. 24,  03/27/2009

Justice Ginsburg’s Footnotes

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“Justice Ginsburg’s Footnotes”

New England Law Review, Vol. 43, No. 4, 2009
Boston Univ. School of Law Working Paper No. 09-12

JAY WEXLER, Boston University – School of Law

In this short article written for the New England School of Law’s March Symposium on Justice Ruth Bader Ginsburg, I report on what happened when I embarked on a project of trying to read every single footnote Justice Ginsburg has ever written as a justice on the Supreme Court. As the article relates, this project was impossible to complete because Justice Ginsburg, it turns out, has written a lot, lot, lot of footnotes. Instead, I ended up reading all of Justice Ginsburg’s footnotes from three of her terms. In the article, I develop a nine-part taxonomy of Supreme Court footnotes and categorize Justice Ginsburg’s notes according to this taxonomy. The study reveals that, among other things, Justice Ginsburg does not use her footnotes, as some humor writers do, to make jokes. Also, she does not follow in the footsteps of the late, great David Foster Wallace and use footnotes to mirror the fractured nature of reality in her work. Instead, Justice Ginsburg uses footnotes to, for example, provide background information regarding cases under review, point out important aspects of case history, and respond to the arguments of other justices.

Source: LSN Law & Rhetoric Vol. 2 No. 22,  03/20/2009

Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System

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“Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System“

Marquette Law Review, Vol. 92, 2009
NSU Shepard Broad Law Center Research Paper No. 08-012

DAVID R. CLEVELAND, Nova Southeastern University – Shepard Broad Law Center

 

Unpublished opinions have become a fact of life in the federal circuit courts. Over eighty percent of all opinions issued by the federal circuits in the last few years have been designated “unpublished.” The meaning of that designation has changed, however, since the birth of the limited publication plans. In the mid-1970s, the federal circuits adopted plans that sought to make some of their decisions unpublished, uncitable, and even non-precedent. That system has unraveled. Unpublished decisions are now routinely published in both commercial and public databases. Federal Rule of Appellate Procedure 32.1 now makes these decisions citeable. What remains is the most critical issue – whether denying these decisions’ precedential weight is Constitutional. This issue was never addressed directly when the circuits’ limited citation plans were put into place; it was viewed as a “morass of jurisprudence” that was better off avoided. Yet, several potential Constitutional infirmities with the practice of declaring some opinions non-precedential have been identified. This is ultimately an issue to be determined by the Supreme Court.

This article, Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, examines the Supreme Court jurisprudence on this issue. It examines what the Court has ruled, what petitioners have argued, and what individual Justices have stated in scholarly writings and separately written opinions. The Court has never accepted the circuits’ assertion that these cases lack precedential value, but neither have they granted certiorari and addressed the issue directly. The Constitutionality of denying unpublished decisions precedential value is ripe for Supreme Court review. Given the fundamental nature of the issue, litigants ought to vigorously seek certiorari and the Court should grant it.

 

Source:  LSN Law & Courts Vol. 2 No. 55,  09/29/2008

Sloppy Research at the United States Supreme Court?

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Adam Liptak has an article in the Week in Review section of today’s New York Times, “The Chief Justice, Dylan and the Disappearing Double Negative.”  The fun article, about music lyrics cited in judicial opinions, includes a sidebar, “Most-Cited Rockers in Judicial Opinions,” drawing from the research of law professor Alex B. Long.

Liptak reports that the Chief Justice cited Bob Dylan in his dissent in last Monday’s Sprint Communications Co. v. APCC Services, Inc.:

“The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing,” Chief Justice Roberts wrote. “‘When you got nothing, you got nothing to lose.’  Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).”

Professor Long is quoted in the article as saying, “this was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision.”

But, as Liptak later points out, the Chief Justice got the cite wrong:

On the other hand, Chief Justice Roberts gets the citation wrong, proving that he is neither an originalist nor a strict constructionist. What Mr. Dylan actually sings, of course, is, “When you ain’t got nothing, you got nothing to lose.”

It’s true that many Web sites, including Mr. Dylan’s official one, reproduce the lyric as Chief Justice Roberts does. But a more careful Dylanist might have consulted his iPod. “It was almost certainly the clerks who provided the citation,” Professor Long said. “I suppose their use of the Internet to check the lyrics violates one of the first rules they learned when they were all on law review: when quoting, always check the quote with the original source, not someone else’s characterization of what the source said.”

We will cover this next year in advanced legal research.

 

 

Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court

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“Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court“

2nd Annual Conference on Empirical Legal Studies Paper
Hastings Law Journal, Vol. 60, 2009

CAROLYN SHAPIRO, Illinois Institute of Technology – Chicago-Kent College of Law

In recent years, the legal academy has experienced a surge of interest in quantitative empirical analysis. Unfortunately, this enthusiasm has not always been accompanied by careful analysis of what the tools and resources of quantitative analysis can tell us about law and legal doctrine. As this Article demonstrates, the findings of some studies therefore unwittingly reflect the limitations of those tools and resources rather than providing insight into the workings of courts.

Specifically, this Article provides a long-overdue critical analysis of the most influential source of data about the Supreme Court, the Original Supreme Court Database, created by political scientist Harold J. Spaeth. The Database, which codes every opinion issued by the Supreme Court since 1953, contains coding for legal provisions considered by the court and for what Spaeth calls issue and issue area. Although numerous scholars – within both political science and law – rely on them, these codes do not report reliable information about the role that law and legal doctrine plays in the Supreme Court’s cases. The Database does not reliably report the legal provisions or doctrines relied upon or at issue; it does not attempt to report legal issues at all, instead describing the “public policy context” of the case; and by design, it generally reports only one issue per case. These limitations have important, but poorly understood, implications for the many, many scholars who rely on the Database, and the Article describes a number of specific studies whose results are unreliable because of the way they use the Database.

This critique of the Database and the ways scholars use it can help scholars to be smarter and more accurate in their use of the Database. At the same time, the Article explores ways to incorporate law and legal doctrine into empirical legal scholarship. To further both goals, the Article presents the results of my Recoding Project of a random sample of recent Supreme Court cases. The findings of the Recoding Project confirm that significant information about law and doctrine is omitted from the databases. Furthermore, the findings suggest that the databases systematically underreport law and doctrine related to courts in particular and to the structure and operations of government in general – issues that may be very salient to the justices in at least some cases. By demonstrating what information is missing or misstated in the Database and by exploring ways to develop more comprehensive and law-focused coding protocols, this Article helps positive scholars – whether political scientists or legal academics – to consider how to take account of law. The Article concludes by discussing implications for future research.

Source:  LSN Law & Positive Political Theory Vol. 4 No. 9,  06/10/2008