Davies on Precedential Piglet and Pooh @horacefuller @GB2d

Ross E. Davies, George Mason University Law School; The Green Bag, is publishing Precedential Piglet and Pooh in Re-Readings VII The Green Bag 1 (2022). Here is the abstract.

Defunct Supreme Court precedents should be called “Woozles” and decisions that followed those defunct precedents should be called “Wizzles.” Here's why. Note: "This work is (or will be) published by the Green Bag (www.greenbag.org), which hopes you will find it useful."

Download the essay from SSRN at the link.

Epstein and Gulati on A Century of Business in the Supreme Court, 1920-2020 @USCGouldLaw @UVALaw

Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published A Century of Business in the Supreme Court, 1920-2020 as Virginia Public Law and Legal Theory Research Paper No. 2022-55 and Virginia Law and Economics Research Paper No. 2022-16. Here is the abstract.

A decade and a half into its life, we ask: How pro business is the Roberts Court? Using a simple objective measure – how often does business win in the Court when it is fighting a non business – we find that the Roberts Court may be the most pro business Court in a century. The win rate for business in the Roberts Court, 63.4%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3%). The question is why? It is tempting to conclude that this pro business result is purely a function of there being a Republican majority of justices on the Roberts Court. The data suggest that the story is more complex. Additional features that emerge from the data are: (a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.

Download the article from SSRN at the link.

Acevedo on Law's Gaze @UALawSchool

John Acevedo,  University of Alabama School of Law, has published Law's Gaze as University of Alabam Legal Studies Research Paper No. 3694579. Here is the abstract.

When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances the court looks upon pornographic materials as the object upon which the court gazes, but in reality the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images. Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.

Download the article from SSRN at the link.

Bloom on The Lessons of 1919 @SMULawReview

Lackland Bloom, Southern Methodist University School of Law, has published The Lessons of 1919 at 72 SMU Law Review 361 (2019). Here is the abstract.

One hundred years ago, the Supreme Court embarked on its first serious consideration of the First Amendment’s guarantee of freedom of speech. In 1919, the Court upheld four federal criminal convictions over First Amendment defenses. Three of the majority opinions were written by Justice Holmes. In the fourth, he offered a classic dissent. Two of the cases, Frohwerk v. United States and Debs v. United States, are of middling significance. The other two, Schenck v. United States and Abrams v. United States, are iconic. From these cases have sprung an expansive and complex jurisprudence of free speech. The author elaborates on these historical cases, and their significance to freedom of speech doctrine and jurisdiction.

Download the article from SSRN at the link.

Feingold and Carter on What Social Science Can Tell Us About the Supreme Court's Use of Social Science @drevvycarter

Jonathan P. Feingold, UCLA, and Evelyn Carter, UCLA, have published Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science at 112 Nw. U. L. Rev. Online 236 (2018).

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice Rehnquist — himself part of the McCleskey majority — invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against White applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s underdeterminacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory and empirical scholarship on motivated social cognition. This “eCRT” lens illuminates how ostensibly neutral biases and heuristics, when informed by socially salient racial stereotypes, will predictably and systematically lead judges to over-value “evidence” that rationalizes existing racial disparities and, as a result, author legal opinions that re-instantiate and legitimize the status quo.

Download the article from SSRN at the link.

Gibson on Taming Uncivil Discourse: Does Reappropriating Group Insults Work? @WUSTL @SimonTheTam

James L. Gibson, Washington University in St. Louis, Department of Political Science, has published Taming Uncivil Discourse: Does Reappropriating Group Insults Work? Here is the abstract.

In an era of increasingly intense populist politics, a variety of issues of intergroup prejudice, discrimination, and conflict have moved center stage in American politics. Among these is “political correctness” and, in particular, what constitutes a legitimate discourse of political conflict and opposition. Yet the meaning of legitimate discourse is being turned on its head as some disparaged groups seek to reclaim, or reappropriate, the slurs directed against them. Using a Supreme Court decision about whether “The Slants” – a band named after a traditional slur against Asians – can trademark its name, we test several hypotheses about reappropriation processes, based on a nationally representative sample with an oversample of Asian-Americans and several survey experiments. In general, we find that contextual factors influence how people understand and evaluate potentially disparaging words, and we suggest that the political discourse of intergroup relations in the U.S. has become more complicated by processes of reappropriation.

Download the article from SSRN at the link.

Cushman on The "Constitutional Revolution" of 1937 @NDLaw

Barry Cushman, Notre Dame Law School, has published Inside the 'Constitutional Revolution' of 1937 at 2016 Supreme Court Law Review 367 (2017). Here is the abstract.

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.

Download the article from SSRN at the link.

Mendenhall on Jeffrey Rosen's Depiction of Louis Brandeis as the Jeffersonian Jurist @allenmendenhall

Allen Mendenhall, Faulkner University School of Law, is publishing The Jeffersonian Jurist? a Reconsideration of Justice Louis Brandeis and the Libertarian Legal Tradition in the United States in volume 9 of the Elon Law Review (2017). Here is the abstract.

This article explores Jeffrey Rosen’s depiction of Justice Brandeis as a “Jeffersonian prophet,” “the leader of a Jeffersonian tradition,” and “the Jewish Jefferson” to examine the meaning of the term “libertarian” in the context of American constitutional jurisprudence. It argues that Rosen unsettles the characterization of Brandeis as non-libertarian or anti-libertarian and, consequently, destabilizes the very meaning of “libertarianism” as that term is used by self-described libertarians in current scholarship about American constitutionalism. Whether Brandeis was a pure or true libertarian does not concern me. What interests me is the way in which scholars have invoked Brandeis to delimit the nature of libertarian jurisprudence in the American constitutional context. Brandeis simultaneously illuminates and problematizes the designation “libertarian.” His formative influence on American constitutional law elicits dogged attempts to categorize or classify him. He continues to attract admirers and provoke antagonists, both of whom express firm opinions about his association with libertarianism. At stake in the debate over Brandeis’s association with libertarianism is the meaning and import of “libertarian” jurisprudence in our constitutional tradition. Disturbing any consensus regarding the term “libertarian” in the context of American constitutional jurisprudence is significant because it necessitates two questions: what, exactly, is “libertarian” jurisprudence, and who decides? Answers to these questions may disrupt the momentum that self-identified libertarian legal scholars have enjoyed over the last decade and underscore claims to libertarianism that are at odds with that consensus.

Download the article from SSRN at the link.