This week’s academic round-up selects a couple of short articles from a symposium on Justice Ginsburg that is forthcoming from the New England Law Review. As the website for the journal describes, “[t]he symposium authors are all former clerks of Justice Ginsburg.”
Jay Wexler (Boston University School of Law) has posted “Justice Ginsburg’s Footnotes” on SSRN, see here. Professor Wexler’s contribution to the symposium is as much (or more) humorous as informational, but is worth a read. According to the author, he set out to “read, study, and analyze every single footnote ever written by Justice Ginsburg as a Supreme Court Justice . . . [so that he could] come up with a complicated functional taxonomy of Supreme Court footnote usage and categorize Justice Ginsburg’s footnotes according to this taxonomy.” Realizing that Justice Ginsburg has written a ton of footnotes, about 240 from the three Terms he studied, Professor Wexler selected footnotes from a sample of the greater population. On pages 6-7, Wexler delineates the nine usages of footnotes in Ginsburg’s opinions. Much more entertaining, however, is the description of a footnote exchange between Justices Ginsburg and Scalia in Minnesota v. Carter, 525 U.S. 98 (1998), making liberal use of opera references.
David Franklin (DePaul University College of Law) has posted a more serious piece about Justice Ginsburg’s jurisprudence on SSRN entitled “Justice Ginsburg’s Common Law Federalism,” see here. In the essay, Professor Franklin explores the views of Justice Ginsburg on the role of the common law judge–that is, the role of (particularly state) judges to provide remedies to injured parties on a case-by-case basis. He undergoes this examination through analyzing every preemption case decided during Justice Ginsburg’s tenure on the Court. He finds, not surprisingly (at least to me), that Justices traditionally characterized as liberal, such as Justice Stevens, vote in favor of federal preemption less often than do the conservative Justices, such as Justice Scalia. Professor Franklin notes that these statistics paint “a mysterious picture” because, in these cases, the liberal cohort of the Court is voting to invalidate assertions of federal power in favor of state regulation with the conservative Justices voting in the opposite manner. The answer to the mystery, Franklin hypothesizes, is that many preemption cases are brought by corporate defendants and sound in deregulation, both of which are attractive to the conservative wing of the Court. I think Franklin’s analysis of preemption cases is somewhat underinclusive (and possibly even incorrect); for instance, it is not merely that the conservative Justices might favor business interests (a view I think is overblown to some extent), but that the traditionally liberal Justices probably want to preserve state common law remedies for claimants even in the face of (sometimes clear) federal regulation (and accompanying preemption). In any event, I do think Franklin’s paper is interesting and I would recommend it as a short and easily-accessible read.