Unlike political scientists and law professors who link Supreme Court decision making to public opinion, we argue that Supreme Court Justices care more about the views of academics, journalists, and other elites than they do about public opinion. This is true of nearly all Justices and is especially true of swing Justices, who often cast the critical votes in the Court’s most visible decisions.
Our argument is grounded in social psychology. In particular, we argue that Supreme Court Justices are not single-minded maximizers of legal or policy preferences.Instead, Justices seek both to advance favored policies and to win approval from audiences they care about. These audiences may include the public but are more likely to include elites—individuals and groups that have high socioeconomic status and political influence. The primary reason is that Supreme Court Justices themselves are social and economic elites. As such, they are likely to care a… Read More »
- Georgetown Law Journal
- 27 July 2010
- Law Review Article
Why the Supreme Court Cares About Elites, Not the American People
Lawrence Baume & Neal Devins
- Stanford Law Review
- 21 July 2010
- Law Review Note
The New Silver Platter: How Today’s Police Are Serving up Potentially Tainted Evidence Without Even Revealing the Search that Produced It to Defendants or to Courts
Micah Block
Imagine the following scenario: A police officer is investigating a major drug trafficking ring. She obtains a wiretap on the cell phone of the suspected kingpin of the organization. The wiretap enables her to overhear conversations between the top target of the wiretap and several other people in the drug… Read More »
- U. Chicago Law Review
- 19 July 2010
- Exclusive Legal Workshop Editorial
A Response to Professor Cuéllar’s “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency
David Zaring University of Pennsylvania Law School
Mariano-Florentino Cuéllar’s “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency is both a work of history and a reminder of echoes of the past in contemporary policymaking. It compares the great post-9/11 bureaucratic reorganization, which created the Department of Homeland Security (DHS), with one great… Read More »
- N.Y.U. Law Review
- 12 July 2010
- Law Review Article
Blind Expertise
Christopher T. Robertson - Harvard Law School
Litigants, attorneys, judges, and jurors are thought to be the main players in the civil litigation system. However, expert witnesses are also required in the vast majority of civil trials. The expert witnesses are the ones who, for instance, tell the factfinder whether a mistake has been made in medical… Read More »
- Stanford Law Review
- 08 July 2010
- Law Review Note
The New Rule 12(b)(6): Twombly, Iqbal, and the Paradox of Pleading
Rakesh Kilaru
In 2007, the Court handed down its opinion in Bell Atlantic v. Twombly. The case set the civil procedure world abuzz; in addition to “retir[ing]” Conley v. Gibson’s famous “no set of facts” standard, Twombly introduced the concept of “plausibility” as the dividing line between complaints that do and do… Read More »
- Cornell Law Review
- 05 July 2010
- Law Review Article
Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine?
Stewart E. Serk - Cardozo Law School
Over the last two decades, the Restatement (Third) of Trusts—all influenced by modern portfolio theory—have reformulated the traditional approach to trust investing, jettisoning its ban on speculative investing. Modern portfolio theory’s central tenet is that the prudent investor should seek… Read More »
- N.Y.U. Law Review
- 02 July 2010
- Law Review Article
Global Institutional Choice
Frederick J. Lee
Many of today’s problems are global in nature and scope. Collective action problems such as global climate change and systemic risk in capital markets threaten to affect every person on the planet. Yet because these problems transcend national boundaries, a single nation cannot solve them alone. So what do we… Read More »
- Stanford Law Review
- 28 June 2010
- Law Review Article
All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation
Katherine Trisolini
Solutions are not coming from Washington. Solutions are coming from our cities. . . . We are the ones that address the issues that matter to people the most. We are the ones that provide the front line, the last hope. . . . When faced with inaction on climate… Read More »
- Cornell Law Review
- 25 June 2010
- Law Review Article
Refining the Democracy Canon
Christopher S. Elmendorf
Professor Rick Hasen’s important new article, The Democracy Canon, identifies an intriguing and, until now, largely unnoticed practice in many state courts: the construing of election statutes with a strong thumb-on-the-scales in favor of easing voters’ access to the polls, candidates’ access to the ballot, and ballots’ eligibility to be counted. … Read More »
- Duke Law Journal
- 21 June 2010
- Law Review Article
The Limits of Advocacy
Amanda Frost - America University Washington College of Law
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called “issue creation”—that is, raising legal claims and arguments that have been overlooked or ignored by the parties—on the ground that doing so is… Read More »