Academic highlight: The “first petition” effect and summer pool memos
on Dec 28, 2015 at 4:36 pm
In the category of “papers I wish I’d written,” I have to recommend one from this month’s issue of Law & Society Review: Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions, by William D. Blake, Hans J. Hacker, and Shon R. Hopwood. The basic premise of the paper is that Supreme Court clerks are cautious when they arrive in the summer, but grow bolder after the feedback they get during the Long Conference in late September. The result is that their early pool memos are much less likely to recommend that the Justices grant review than those that they write later in the year.
What this paper does is investigate that question, with data from five years (OT2008-2012), and quantify the size of the effect, which is substantial. This isn’t the place to go through the statistical analysis, which controls for a wide variety of variables (the pool memo finds a circuit split, participation of the Solicitor General, there is a dissenting opinion below, etc.). The key finding, though, is that, even controlling for all those variables, the likelihood of a grant recommendation is about thirty-six percent lower for the Long Conference at the end of the summer than it is for Conferences later in the Term. Extrapolating from the statistical relation between the pool memo recommendation and the Court’s decision to grant review, the authors estimate that if the Long Conference pool memos were as generous as those written later in the Term, the Court would take about fifteen percent more cases at the Long Conference than it presently does.
The paper isn’t remarkable because of the thesis. Many readers probably will not find the thesis surprising; it certainly resonates with the behavior of clerks during the Term that I was there. What is remarkable, though, is how sharply the clerks’ recommendations shift through the Term, and how big an effect that shift has on the Court’s docket. As if there weren’t enough things for the prudent petitioner to consider, perhaps now we will see strategic efforts to shift a petition’s Conference date into, or out of, the range of the Long Conference. Will the petitioner with a due date in early April file early to try to have the case considered before the Court rises for the summer? Perhaps the respondent in the same matter will waive the right to respond, hoping to delay the due date of the brief in response to the petition long enough to push the matter past the end of the Term. Or perhaps nobody would take this kind of thing seriously enough to react at all. Perhaps it’s just “academic.”
