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Wednesday round-up

Adam Liptak’s report for the New York Times on polarization in the hiring of Supreme Court clerks (covered in yesterday’s round-up) attracted significant attention in the blogosphere. The WSJ Law Blog summarizes Liptak’s article, while the Harvard Crimson’s Flyby blog charts the number of Harvard Law alums who serve as clerks at the Court each year. At Balkinization, Jason Mazzone responds to Liptak, arguing that his “claim about increased ideological hiring is exaggerated” because it does not account for an increase in the proportion of court of appeals judges nominated by Republican presidents – from thirty-seven percent in 1980 to fifty-seven percent today. At the Volokh Conspiracy, Orin Kerr also responds.  He argues that “the ideology of law clerks roughly matches that of the Justices because the Justices are trying to solve the principal-agent problem” – that is, when a Justice and a clerk are ideologically in sync, “the Justice[ has] more confidence that [his or her] law clerks will be faithful agents without the Justice[] having to engage in costly monitoring of law clerk performance.”


  • At ACSblog, Piper Hoffman argues that the Supreme Court should deny certiorari in Dukes v. Wal-Mart, “the largest class action in history.”
  • At PrawfsBlawg, Brendan Maher considers why no modern Supreme Court nominee has been under forty years old (namely, “inexperience and small sample size”).
  • According to a report by the Associated Press (via the Chicago Tribune), retired Supreme Court Justice Sandra Day O’Connor – who has long been critical of judicial elections – is scheduled to speak today in Iowa at a panel discussion that is intended as a response to a campaign to remove three Iowa Supreme Court justices who supported a decision that legalized gay marriage in the state.  .
  • Constitutional Law Prof Blog describes a new Second Circuit decision applying and extending the Supreme Court’s decision in last Term’s Milavetz, Gallop & Milavetz, P.A. v. United States, in which the Court upheld several sections of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 against a First Amendment challenge.