Plurality opinion

About: Plurality opinion is a research topic. Over the lifetime, 163 publications have been published within this topic receiving 5206 citations.

The Roberts Court Source-Code: Pinpointing the Justices' Opinion Construction Toolkits

Abstract: The Supreme Court’s main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court’s disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties' merits filings, amicus briefs, and from lower court opinions between the 2005 and 2014 Terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties' briefs and filings, amicus curiae briefs, and lower court opinions on the Court's majority opinion language. This article provides both macro and micro level analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual Justice. In the aggregate this article finds that of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower court’s opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.

A Bottom-Up Account of State Supreme Court Opinion Writing

Abstract: This research addresses the central product of judicial work, written opinions. We investigate whether lower court judges are in the position to influence the interpretation of law at higher courts through their own opinions. An examination of 847 state supreme court cases in 1997 shows that the writings of lower court judges do serve as a foundational basis in a bottom-up method of opinion writing, which is conditioned by career factors, including previous jobs and being appointed to the state supreme court, and the judicial workload. This research expands our understanding of opinion writing by shedding light on the differences and similarities in the ingredients of judicial opinions at different court levels and corroborates the growing importance and effectiveness of lower court judges in the creation of law.

Modeling Collegial Courts (3): Adjudication Equilibria (Revised)

Abstract: We present a formal game theoretic model of adjudication by a collegial court. The model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes "judicial" rather than legislative or electoral objectives by the actors. The model makes clear and often novel predictions about the plurality opinion's location in "policy" space; the case's disposition; and the size and composition of the disposition-, join-, and concurrence-coalitions. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case. In general, the opinion is not located at the ideal policy of the median judge. The model suggests new departures for empirical work on judicial politics. This paper substantially revises a prior version dated July 1 2009.

The Seattle and Louisville school cases: There is no other way

Abstract: In Parents Involved in Community Schools v. Seattle School District No. 1, (1) the Supreme Court addressed two student assignment plans that relied upon race to determine which public schools certain children could attend. The Seattle suit challenged high school assignments; the Louisville action, elementary and middle school placements. The Court characterized each plan as voluntary rather than remedial and held that each violated the Fourteenth Amendment's Equal Protection Clause. That judgment required Justice Kennedy's crucial fifth vote, and his concurring opinion explicitly declined to rule out the achievement of diversity as a compelling educational interest or to eliminate the utilization of all race-conscious means. (2) Nonetheless, Parents Involved goes a considerable way toward affirming that our common citizenship and shared humanity transcend differences of ethnicity and race and that a Republic riddled with race-conscious decisionmaking is not what America aspires to be. Five Justices contributed opinions in this case, and the debate was as impassioned as one would expect a debate on race, schools, and the country's past and future course to be. In general, these high stakes elicited a high quality of judicial discourse. Yet this battle brought no peace or even truce, and indeed left only the impression that the Court's own decisions on the use of race in education remain in tension (3) and that the profound differences that persist within the Court and throughout the country on these questions will be argued just as heatedly another day. I propose to examine the five opinions in three groups: first the Roberts court and plurality opinion and Thomas concurrence; next the Kennedy opinion concurring in part and concurring in the judgment; and then the Stevens and Breyer dissents. As a judge of an inferior court, I approach my task with the deepest respect for the Court and its members and in the hope that the candor necessary for worthwhile commentary is but a mark of appreciation for the conscientious manner in which that fine institution goes about its work. I. The Roberts and Thomas Opinions The Chief Justice appropriately took the lead opinion for himself. The tradition of Chief Justices writing on race and education, while hardly uniform, goes back to Brown (4) (Earl Warren) and Swann (5) (Warren Burger). Yet this case, unlike Brown and Swann, was not unanimous. In fact, the 5-4 decision, with crucial portions of the lead opinion not supported by a majority, was about as far from unanimity as a court could be. And this case, unlike Brown and Swann, did not vindicate the efforts of the parties seeking to achieve a greater degree of racial integration in our public schools. (6) For these and other reasons, holding the Seattle and Louisville plans invalid portends a ferocious onslaught. It will be said that the very Court that led the fight for school desegregation turned history on its head; that the Court's decision served to perpetuate resegregative trends in public education already underway; that the Court allowed the fact of housing segregation to foreclose educational opportunities as well; that the Court forsook not only its traditions but also its respect for precedent; that a Court majority ostensibly opposed to activism was all too ready to practice it; and, most seriously, that the Court abandoned African Americans in their long struggle to achieve true equality in these United States. Justice Stevens expressed his "firm conviction that no Member of the Court that [he] joined in 1975 would have agreed with [the] decision." (7) Justice Breyer predicted the decision would be one that "the Court and the Nation will come to regret." (8) The New York Times warned that there "should be no mistaking just how radical this decision is." (9) And in the Washington Post, Eugene Robinson insisted that society's quest for fairness and equality could proceed only "by working around those dour men in black robes on Capitol Hill. …

Weed-Free I.P.: The Supreme Court, Intellectual Property Interfaces, and the Problem of Plants

Abstract: Intellectual property law offers little solace for the fastidious. Intellectual property regimes germinate and proliferate in a generally untidy manner. Intellectual property regimes have fuzzy edges, and many regimes overlap with others - trademarks with copyrights, patents with trade secrets, copyrights with design patents - in unpredictable, unusual, and even alarming ways, resulting in complex intellectual property interfaces. In the past, the Supreme Court exhibited a measure of tolerance for messy interfaces among intellectual property regimes. Now, the Court's attitude may be shifting. Last term, the Justices showed signs of squeamishness over the prospect of concurrent patent and trade dress protection. This term, the Court has agreed to hear J.E.M. Ag Supply v. Pioneer, another, more complex case involving concurrent protection. In J.E.M., the problem is plants. The precise interface issue is whether plant innovation should be exclusively consigned to protection under the specialized "plant variety protection" regime, or whether it may also concurrently be protected under the general utility patent regime. In addition to its substantial practical significance, the case also raises many important theoretical questions: to what extent should the law tolerate messy interfaces between intellectual property regimes? Should innovators be entitled to accumulate protections, or should they be forced to elect from among regimes? Do differences among intellectual property regimes invariably signal conflict (and inefficiencies), or might they also signal synergies? In this essay, we analyze the intellectual property interface problem through the lens of the J.E.M. Ag Supply v. Pioneer case. We introduce the regimes at issue and explain the interface arguments, and analyze potential judicial and legislative approaches to reconfiguring the interface. We suggest that when deciding J.E.M., the Court should focus on the following considerations: (1) regarding the specific interface issue in the case - the utility patent/plant variety interface - the Court has already dealt adequately with the principal textual arguments in Chakrabarty, and recent scholarship only reinforces the correctness of the Chakrabarty plurality opinion. (2) reconfiguring an interface between patent and non-patent regimes by imposing judicially-crafted exceptions to patent eligibility is counterproductive; it stimulates opportunistic patent claims drafting and ancillary litigation, and may result in the diversion of innovation to less socially-desirable protection schemes. (3) reconfiguring an interface between patent and non-patent regimes should be left to the legislature when existing, entrenched doctrine supplies no compelling solution, and where the interface problem implicates complex policy judgments best rendered on a developed empirical record. Congress has not created intellectual property regimes so as to fit together seamlessly. Sometimes the interfaces are messy and create the potential for concurrent protection pursuant to overlapping regimes. Whether this configuration of intellectual property regimes advances technological progress or thwarts it is a complex policy judgment. In the case of plant innovation, it is a judgment best suited for Congressional deliberation. The alternative - judicial reconfiguration of the utility patent/PVPA interface through the use of patent eligibility restrictions - is likely to impose costs without achieving concomitant benefits.