Academic Round-Up

Laura Krugman Ray (Widener University) has recently published an article in the Connecticut Law Review entitled “Clerk and Justice: The Ties that Bind John Paul Stevens and Wiley B. Rutledge,” see here.  The piece compares and contrasts the jurisprudential and institutional approaches of Justice Stevens and Justice Wiley Rutledge, the Justice with whom Stevens clerked.  Professor Ray identifies several areas where the jurisprudence of Stevens and Rutledge intersect, as evidenced by detainee cases such as Ahrens v. Clark, 335 U.S. 188 (1948) and Rasul v. Bush, 542 U.S. 466 (2004), and Establishment Clause cases such as Everson v. Board of Education, 330 U.S. 1 (1948) and Capital Square Review and Advisory Board v. Pinette, 515 U.S. 753, 769-70 (1995) (Stevens, J., dissenting).  The last section of the article also discusses similarities in the opinion-drafting tendencies of each, including their copious use of footnotes and shared affinity for writing dissenting and concurring opinions.  The paper does note, however, that Stevens deviates from Rutledge’s tendency to write extremely lengthy opinions that are full of “resonant and dramatic diction.”  The paper is interesting because it provides a window into the influence of a Justice’s clerkship on their eventual practices as a Justice, especially because three members of the current Court (Roberts, Stevens, and Breyer) previously served as Supreme Court clerks.

David C. Thompson and Melanie F. Wachtell have recently published in the George Mason Law Review an article entitled “An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call For Response and the Call for the Views of the Solicitor General,” see here. Using a dataset that the authors compiled themselves, the article examines requests by the Court to file a response (otherwise called a “CFR”) using thirty different coded variables for each petition between October Term 2001 and 2004 and “calls for the views of the Solicitor General” (otherwise called a “CVSG”) using petitions filed between October Term 1992 and 2004. The more interesting findings of the study include: (1) the overall grant rate increases from a baseline of .9% to 8.6% after the Court CFRs; (2) overall there are approximately 200 CFRs per Term; (3) the Supreme Court CVSGs in about 11 cases each year; (4) the grant rate rises from .9% to 34% following a CVSG; and (5) the Court calls for the views of the Solicitor General most often in cases involving intellectual property, antitrust, ERISA, and other complex regulatory schemes.  This paper represents an interesting first stab at analyzing the impact of CFRs and CVSGs, areas that are finally getting some needed scholarly attention.  Ryan Black (Washington University) and Ryan Owens (Harvard University) are also working on a strategic analysis of CVSGs, which I hope to blog about when they are finished.