Academic Round-Up

Ward Farnsworth (Boston University School of Law) has posted “Dissents Against Type” on SSRN, see here.  The piece is forthcoming in the Minnesota Law Review and is part of a symposium that I participated in during the fall on the topic of law and politics in the 21st century.  In the piece, Professor Farnsworth examines dissents in criminal cases that do not, at first glance, comport with the ideological preferences of the Justice who authors the dissent–for example, a dissent by Chief Justice Rehnquist in favor of a criminal defendant or one by Justice Brennan in favor of the government in a criminal case.  He finds that very few dissents against type actually exist because they often reflect some deeper ambiguity in the law or facts of a case, or a subtle nuance in a Justice’s method of constitutional interpretation.  What I really like about this piece is that it is short, original, and very straightforward.  Indeed, Professor Farnsworth summarizes his numerous observations in the conclusion of the paper.

Bradley Joondeph (Santa Clara University School of Law) and Sri Srinivasan (O’Melveny & Myers) have posted “Business, the Roberts Court, and the Solicitor General: Why the Supreme Court’s Recent Business Decisions May Not Reveal Very Much,” see here.  This piece challenges the conventional wisdom that the Roberts Court is pro-business on two closely related grounds: first, the population of cases involving business interests is just too small (66 decisions) to draw any firm conclusions because the Roberts Court has been together for only three years; and second, other factors such as the influence of the Solicitor General may also account for the perceived pro-business outcomes in these cases.  Particularly telling, according to the authors, is that when the Chamber of Commerce and the Solicitor General were on opposite sides of a case as amici, the Court sided with the government in 13 of the 14 cases in the study.  Although I am not wholly convinced by the arguments in the piece, the authors do provide appropriate caveats to their findings and are careful not to overreach.  At the very least, the paper is interesting enough to recommend to readers of the blog.