Supreme Court Decisions

About: Supreme Court Decisions is a research topic. Over the lifetime, 1804 publications have been published within this topic receiving 17066 citations.

The United States Supreme Court’s Decision in Kirtsaeng v. Wiley & Sons : An “Inevitable” Step in Which Direction?

Abstract: This opinion analyzes the decision of the Supreme Court of the United States in the case Kirtsaeng v. Wiley & Sons. In this decision, the Court ruled that the principle of copyright exhaustion as provided in Section 109(a) of the Copyright Act equally applies to products “lawfully made” in the United States as well as to products that have been “lawfully made” in foreign countries. This “revolutionary” decision came after almost two decades of conflicting positions, including two previous Supreme Court decisions that had failed to clarify the issue, notably Quality King v. L’anza and Costco v. Omega. Yet, a closer look at the decision, particularly at the concurring and dissenting opinions in the case, seems to show that Supreme Court’s position may have been a necessary step that the Court had to take in order to redress the ambiguities that continued to linger on the issue, especially in light of the additional uncertainty that the Court itself had injected into the interpretation of Section 109(a) with its decision in Quality King. Accordingly, more chapters may be awaiting to be written in this American saga on the territorial application of the principle of copyright exhaustion. As the concurring opinion in the case directly suggested, Congress could overrule the Supreme Court and clarify with a legislative amendment that the application of copyright exhaustion in the United States is not international but instead national exhaustion for all products. Calls for copyright reforms not surprisingly, started just days after the decision in Kirtsaeng. Furthermore, even if the Court’s decision would survive future reforms, copyright owners continue to have alternative means, such as contractual clauses and technical measures, to largely reduce the positive effects of the decision for international trade.

Text vs. Precedent in Constitutional Law

Abstract: Conservative constitutional law scholarship is divided into two camps. First, there are the originalists and textualists like myself, Randy Barnett, John Harrison, Gary Lawson, Judge Michael McConnell, Michael Stokes Paulsen, Saikrishna Prakash, and, at times, Akhil Amar. This camp believes that the text of the Constitution, as it was originally understood, is controlling in most constitutional cases. Second, there are the followers of Supreme Court precedent, who sometimes argue incorrectly that they are Burkeans. (1) The latter group includes Charles Fried, Thomas Merrill, Ernie Young, and, in some respects, Richard Fallon. These scholars all follow the doctrine over the document and believe in a fairly robust theory of stare decisis in constitutional law. (2) The key case in recent times about which the textualists and the doctrinalists have dashed is Planned Parenthood of Southeastern Pennsylvania v. Casey. (3) The argument in this Essay is that the doctrinalists are wrong in arguing for a strong theory of stare decisis for three reasons. First, there is nothing in the text, history, or original meaning of the Constitution that supports the doctrinalists' strong theory of stare decisis. Second, the actual practice of the U.S. Supreme Court is to not follow precedent, especially in important cases. In other words, precedent itself counsels against following precedent. And, third, a strong theory of stare decisis is a bad idea for policy reasons. Each of these three arguments is taken up in turn below. I. TEXTUALIST AND ORIGINALIST ARGUMENTS Both textualism and originalism supply arguments as to why following precedent is wrong. As for the text, it is striking that there is not a word in the Constitution that says in any way that precedent trumps the text. Article V specifically sets forth a procedure by which the constitutional text can be changed through the amendment process. (4) Amendment is the only process the constitutional text provides for making changes in the document. Five-to-four or even nine-to-zero Supreme Court decisions do not trump the text. Moreover, in the Supremacy Clause, the document says that the Constitution, laws, and treaties shall be the "supreme Law of the Land," (5) but makes no mention of Supreme Court decisions. It is clear that under the text of the Constitution the Supreme Court has no power to follow its own decisions when they conflict with the text. Moreover, the Supremacy Clause makes this Constitution the supreme law of the land, and this Constitution is the one that we know was submitted for ratification under Article VII. The text, then, simply does not support a strong theory of stare decisis. The original history of the Constitution leads to the same conclusion. Records from the Philadelphia Convention and of the ratification debates do not mention anywhere a power of the Supreme Court to follow precedent over constitutional text. (6) Had such a power been contemplated, surely it would have been discussed and debated during the heated and close fight over ratification of the Constitution. Alexander Hamilton does mention in Federalist No. 78 that the courts might sometimes be bound by precedents, but he does not assert a power to follow precedent where it plainly conflicts with the text. (7) At most, Hamilton's comment and a few other early comments like it suggest a power to follow past interpretations of the constitutional text which are plausible and not in contradiction to the text. (8) No one in the Framing generation, not even the most committed Anti-Federalists, imagined a doctrine of stare decisis trumping the constitutional text of the kind the Justices found in Casey. (9) Moreover, early practice under the Constitution shows that the Framers themselves did not follow a strict theory of stare decisis on the most significant constitutional issue of their day--the constitutionality of the Bank of the United States. It is worth rehearsing quickly the history of the debate over the constitutionality of the Bank during the first forty years of the Republic. …

Tiresias and the Justices: Using Information Markets to Predict Supreme Court Decisions

Abstract: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." -Oliver Wendell Holmes' I. INTRODUCTION TO INFORMATION MARKETS 1143 A. Harnessing Group Knowledge: The Information Market 1144 B. Successfully Functioning Information Markets 1148 II. PREDICTING SUPREME COURT DECISIONS: THEORIESINNEEDOFAMARKET..... 1150 A. The Limitations of Existing Prediction Models 1150 B. The Information Market as Improvement in Supreme Court Predictions.. 1158 III. DESIGNING A SUPREME COURT INFORMATION MARKET 1167 A. Open Markets 1168 B. Expert Markets: Separating the Sheep from the Wolves 1169 C. Competing Markets 1181 IV. CONSEQUENCES OF A SUPREME COURT INFORMATION MARKET 1182 A. Benefit to Bar and Lower Bench 1182 B. For the Supreme Court: A Mixed Blessing 1185 C. Moving into the Future: Tiresias as a Bridge 1191 In ancient Greek mythology, oracles and seers could foretell the actions of gods and kings. With these predictions, ordinary citizens could glimpse the future actions of their rulers, and the recipients treasured those insights. Such knowledge may be more than myth. This Article explores the power of the information market, an economic instrument that allows groups of participants to merge their collective knowledge to make predictions. Specifically, we discuss the application of information markets to predicting Supreme Court decisions. The implications are significant: Supreme Court rulings determine issues critical to American politics and business, ranging from the Fifth Amendment rights of property owners, to abortion and affirmative action, to claims of securities fraud. The ability to know a probable Supreme Court outcome in advance can potentially create monetary value for practitioners, provide guidance for lower courts, and perhaps even influence the Supreme Court itself. Applying information markets to the Supreme Court offers a new way of understanding its rulings. Current prediction efforts centered in legal methodology are largely bound up in individual normative argument, while formal theoretical models of decisionmaking grounded in political science are postdictive and tend to concentrate heavily on political ideology.2 Information markets offer an alternative, one that will aggregate the predictions of those who are knowledgeable about the Court's decisionmaking into an information market that rewards correct analysis.3 An information market of this kind, which we propose naming Tiresias,4 should lead to more accurate forecasts of Supreme Court decisions and further demonstrate the potential of information markets. To date, the intersection of law and information markets has been largely unexplored. The most extensive discussion has concerned applying information markets not to courts, but to administrative agencies.5 Other potential legal applications of information markets, such as application to the judiciary, have yet to be discussed. Similarly, theories of Supreme Court prediction could be developed further. Current theories of Supreme Court prediction tend to focus on precedent-based models (legal theory) or to rely on the political ideology of the Justices (political or attitudinal theory).6 Although researchers at Washington University in St. Louis designed empirical studies based on these two models for the 2002 Supreme Court Term, the studies did not aggregate the opinions of experts in the way an information market would, and they must be revised to reflect new personnel on the Court.7 Therefore, this Article presents the first extended discussion of how information markets might be used to predict Supreme Court outcomes. …

Criteria for 'Good' Justifications

Abstract: Many institutions in a democratic society wield important power by virtue of the decisions they make. These decisions may concern individuals or have a more general impact on society. It goes without saying today that this exercise of power must be accounted for. A supreme court’s reasoning is given in its judgements. A central bank’s reasoning is given in the decision-making body’s minutes. In this paper, we develop criteria for what constitute good written justifications for a decision, not what makes a good decision per se. We look at the two institutions we know best: supreme courts and central banks. Of course, these are not the only institutions that exercise power on behalf of the state, and we also ask whether our criteria could be applied more generally. We assess a selection of supreme court judgements and monetary policy decisions in various countries qualitatively against our criteria, and find that practice largely conforms to the criteria. There are some common features between supreme courts and central banks. In recent years there has been a development in the way the judgments are written in the UK Supreme Court. Earlier, each judge wrote his votum. Now they are writing a common text. With individual writing, there were many different formulations of the normative text. It is easier for the public to relate to one legislative text. The UK Supreme Court, under the presidency of Lord Neuberger, has therefore gradually moved towards writing a joint text. John Roberts, the US Chief Justice, thought that judges should be worried when they are writing separately about the effect on the court as an institution. What about the minutes of the central banks? Professor Alan Blinder at Princeton argues that a central bank that speaks with a cacophony of voices has no voice at all. Professor Otmar Issing, the former Chief Economist and Member of the Board of the ECB, believes that there is a danger that individual minutes provide an incentive for individual members to put themselves ahead of the institution. We also test empirically whether the institutions’ decisions and the justifications for these decisions are communicated in clear language. Our analysis is inspired by Bank of England chief economist Andrew Haldane’s speech “A little more conversation, a little less action”, and by the report “Bankspeak: The Language of World Bank Reports 1946-2012” by Franco Moretti and Dominique Pestre at Stanford Literary Lab. We analyse more than 6,000 central bank and supreme court decisions from the past decade and find considerable differences in length and readability across countries and institutions. The grand chamber decisions of the European Court of Human Rights are by far the longest, while the European Court of Justice employs the most complex language. The Danish central bank keeps things briefest and uses the clearest language, but also has the simplest regime to explain. The Swedish central bank’s minutes stand out as both long and complex, while the Norwegian central bank is unusually concise. Moretti and Pestre analysed the text of all World Bank reports and found quantitative indications that the language of the reports had moved in the wrong direction in terms of readability. We perform the same tests on central banks and supreme courts and find that these institutions’ language has not moved in the same negative direction. Former Bank of England governor Mervyn King argued that the design of an institution “must reflect history and experience”, and there is no doubt that each institution’s way of writing is influenced by its own history. This is what economists refer to as “path dependence”. We wonder, however, whether there is rather too much path dependence in many cases, and whether the institutions in question might benefit from looking at trends and learning from other institutions both at home and abroad. In our work on this paper, we have been particularly wary of phrases along the lines of “based on a general assessment”. Alarm bells sound whenever we see them, especially with any frequency, as they are liable to conceal rather than illuminate the true rationale.