Search

A substantial portion of constitutional law rests on untested factual predictions made by the Supreme Court. Such forecasts have played a large role in a wide range of case outcomes, helping the Court decide questions such as whether corporations have the right to spend money on elections and what evidence may be used in criminal cases despite Fourth Amendment violations. Scholars have not yet studied the frequency of such predictions, the problems they create, or the functions they serve. The literature has looked more closely at court decisions that depend on conclusions of legislative fact--facts not specific to a certain plaintiff or defendant but concerning the world more generally, such as the finding in Brown v. Board of Education that school segregation caused psychological harm to children. And after scholars began to recognize how important such factual conclusions were, courts increased their reliance on empirical evidence when declaring legislative facts. But this Article contends that the Supreme Court has often circumvented the pressure to rely on evidence by recharacterizing its factual conclusions as predictions. Thus, for instance, rather than concluding that a longstanding law regulating newspapers has discouraged political discussion, the Court has simply asserted that the law would discourage such discussion if it were upheld. And rather than concluding that minority viewpoints are sufficiently represented on juries even in states with no jury unanimity requirement, the Court has predicted that minority viewpoints will be heard even without the unanimity rule. By deciding cases in this manner, the Court has made predictions that operate as if they are legislative facts even when it performs no factual inquiry. The Article first looks closely at a set of cases in which such predictive factfinding has occurred, including those in which a law has existed for decades, but the Court has not asked whether there is existing evidence that the predicted outcome has happened. While conceding that predictive judgments are necessary in many cases, the Article nonetheless insists that the Court should approach those judgments cautiously. That is because the Court's predictions are frequently incorrect, and they can create factual precedent by enshrining erroneous conclusions into law that lower courts adhere to even if facts change or the prediction is proven incorrect. Further, making unsupported predictions threatens the adversarial system because predictions are often made by amici or judges rather than the parties to a case. Finally, the prevalence of unsupported predictions may be undermining the judiciary's legitimacy. The Court can start to remedy the problem by recognizing its existence and avoiding unnecessary predictions. When predictions are unavoidable, the Supreme Court and lower courts can try to improve the accuracy of their forecasts, consider remanding the case for more factual development, or issue a provisional decision that would encourage future litigation if a prediction turns out to be incorrect., INTRODUCTION I. LEGISLATIVE FACTS AND PREDICTIVE FACTS A. The Legislative Facts Debate and the Court's Turn to Empirical Evidence B. Predictive Legislative Facts 1. A Working Definition of Predictive Legislative [...]

The nondelegation doctrine is dead. It is difficult to think of a more frequently repeated or widely accepted legal conclusion. For generations, scholars have maintained that the doctrine was cast [...]

Since 1957, New York courts have required contingent fee lawyers to file 'closing statements' that disclose settlement amounts, lawyers' fees, an accounting of expenses, and other information. This Article provides a preliminary analysis of these data for the period 2004-2013. Among this Article's findings are that settlement rates in New York state courts are very high (84%) relative to previous studies; that very few cases are resolved by dispositive motions; that litigated cases and settled cases have almost exactly the same average recovery; that median litigation expenses, other than attorney's fees, are 3% of gross recovery; that claims are disproportionately from poor neighborhoods; and that attorneys' fees are almost always one-third of net recovery, which is the maximum allowed by law., INTRODUCTION 1972 I. RETAINER AND CLOSING STATEMENTS 1972 II. SETTLEMENT RATES 1981 III. AMOUNTS RECOVERED 1985 IV. FEES AND EXPENSES 1988 V. THE DEMOGRAPHICS OF TORT CLAIMS 1989 CONCLUSION 1992 [...]

INTRODUCTTON 1940 I. PRIOR RESEARCH ON CRIMINAL APPEALS OUTCOMES 1941 II. DATA, METHODOLOGY, AND RESEARCH DESIGN 1944 A. Variables 1948 1. Dependent Variables 1948 2. Independent Variables 1949 a. Case [...]

This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. Qualified immunity shields government officials from constitutional claims for money damages so long as the officials did not violate clearly established law. The Supreme Court has described the doctrine as incredibly strong--protecting 'all but the plainly incompetent or those who knowingly violate the law.' Legal scholars and commentators describe qualified immunity in equally stark terms, often criticizing the doctrine for closing the courthouse doors to plaintiffs whose rights have been violated. The Court has repeatedly explained that qualified immunity must be as powerful as it is to protect government officials from burdens associated with participating in discovery and trial. Yet the Supreme Court has relied on no empirical evidence to support its assertion that qualified immunity doctrine shields government officials from these assumed burdens. This Article is the first to test this foundational assumption underlying the Supreme Court's qualified immunity decisions. I reviewed the dockets of 1,183 Section 1983 cases filed against state and local law enforcement defendants in five federal court districts over a two-year period and measured the frequency with which qualified immunity motions were brought by defendants, granted by courts, and dispositive before discovery and trial. I found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases. Across the five districts in my study, just thirty-eight (3.9%) of the 979 cases in which qualified immunity could be raised were dismissed on qualified immunity grounds. And when one considers all the Section 1983 cases brought against law enforcement defendants--each of which could expose law enforcement officials to burdens associated with discovery and trial--just seven (0.6%) were dismissed at the motion to dismiss stage and thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. My findings enrich our understanding of qualified immunity's role in constitutional litigation, belie expectations about the policy interests served by qualified immunity, and show that qualified immunity doctrine should be modified to reflect its actual role in constitutional litigation., INTRODUCTION The United States Supreme Court appears to be on a mission to curb civil rights lawsuits against law enforcement officers, and appears to believe qualified immunity is the means [...]

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference--the doctrine under which courts defer to a [...]

ABSTRACT This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation's principal patent court [...]

This Article considers the role of information, affected groups, and persuasion in the connection between justice votes and the content of briefs in the Roberts Court. Our results shed new [...]

Modern technology has revolutionized the law. Computers drastically expanded the scope and speed of access to legal information. Unlike the days when lawyers had to climb ladders in the stacks [...]

B. Other Topics and Research Questions Work on the individual judge will continue; it is that essential to the judicial behavior project. At the same time, there has been an [...]

ABSTRACT Back in the 1940s the political scientist C. Herman Pritchett began tallying the votes and opinions of Supreme Court Justices. His goal was to use data to test the [...]

Part III. Benign Race-Based Classifications and K-12 Desegregation The developments described so far address race-based Equal Protection claims of invidious discrimination, and limits on courts' remedial authority for purposeful K-12 [...]

On May 17, 1954, United States Supreme Court Chief Justice Earl Warren delivered a unanimous ruling in the landmark civil liberty case Brown v. Board Of Education. (1) The Court [...]

EDITORS' INTRODUCTION PETER A. APPEL ** & MARK SQUILLACE *** Our colleague, Professor Joe Feller of the Sandra Day O'Connor College of Law at Arizona State University was well-known and [...]

I. INTRODUCTION Spawned in an era of rising health care costs and bitterly fought political campaigns, the fevered pitch of Missouri's tort reform debate continues, (1) even after Missouri's version [...]