Academic Round-up

Federal law requires the Secretary of State to record the birthplace of an individual born in Jerusalem as “Israel,” which is at odds with State Department policy.  The question for the Court in M.B.Z. v. Clinton, which will be argued today, is whether that law...

The following post is a summary taken from Judicial Ghostwriting: Authorship on the Supreme Court, an article written by University of Toronto Professors Jeffrey Rosenthal and Albert Yoon published in the Cornell Law Review.  Imagine a job where each year one is required to evaluate over seven thousand files, closely evaluate approximately sixty to eighty cases, and write seven to ten lengthy published documents, all of which will become established law and be scrutinized by countless judges, lawyers, academics, and law students. Add one additional requirement: do this job well past retirement age into your seventies and eighties. Incredible as it sounds, the above describes the job of a Supreme Court Justice. In contrast to the other branches of the federal government, the Court is a small and closed environment. It consists of only nine Justices, who are collectively responsible for deciding which cases to hear and ultimately deciding those cases in the form of written opinions. Unlike the President or Congress, the Court operates with lean staffing. The Justices are each responsible for their own writing; their only assistance comes from their law clerks, for whom each Justice is currently allowed four.  Within each Justice’s chambers, law clerks assist in evaluating certiorari (cert) petitions, preparing the Justices for oral argument, and ultimately producing written opinions. The law clerks are recent law graduates, typically among the top of their classes from a handful of elite law schools.  Given the demands of the job, it is understandable that Justices seek to ease their work burdens.

On November 8, the Court will hear argument in United States v. Jones, which asks whether the government’s use of a GPS device to track the movements of a car constitutes a “search and seizure” under the Fourth Amendment. The subject is one that has long intrigued academics.  George Washington University law professor Orin Kerr, also a contributor to this blog, has devoted much of his career to writing about the implications of new technology on Fourth Amendment doctrine.  His Yale Law Journal article Fourth Amendment Seizures of Computer Data was cited by respondent Antoine Jones to support the argument that gathering GPS data from a car's movements constitutes a “seizure.”  In a forthcoming article, Kerr argues that the Court’s nearly incomprehensible Fourth Amendment jurisprudence can best be understood as an attempt to maintain equilibrium in the face of changing technologies and social practices.  When such new developments expand government power, the Court extends Fourth Amendment protections; when they undermine government power, the Court will limit the Fourth Amendment’s scope.  It will be interesting to see how Kerr’s equilibrium thesis plays out in Jones.  (Professor Kerr has already posted his analysis of the case on this blog, which can be found here.)

Perry v. New Hampshire, scheduled for oral argument on November 2, asks whether due process prohibits the admission of all eyewitness identification testimony made under suggestive conditions, or whether it bars only eyewitness testimony in which the police were responsible for those conditions.  The reliability of eyewitness identification has been the subject of close study by legal academics and social scientists alike€”scholarship that may have motivated the Supreme Court to hear this case.

Legal scholars write about, and litigate, questions regarding the separation of church and state that are now before the Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC....

As Golan v. Holder illustrates, academics don't just write about the law, they sometimes make it....

Although Chief Justice Roberts recently declared that legal scholarship is "largely of no use or interest" to the practice of law, his Court cites law review articles in nearly one-third of its decisions....

Professor James Pfander's proposed end run around qualified immunity....

Is the Solicitor General responsible for the Court's shrinking docket? ...

Do criminal defendants have a remedy for bad advice during plea bargaining if they are ultimately convicted and sentenced pursuant to constitutionally adequate procedures?...