Federal Judiciary

Academic Round-Up

By Akin Gump Supreme Court Practice Group

This week’s academic round-up points out a couple of interesting articles, the first of which has been extensively debated and discussed in the blogosphere already.

The first is an interesting and provocative paper by Dan Kahan (Yale Law School), David Hoffman (Temple University School of Law), and Donald Braman (George Washington University Law School) entitled, “Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism,” which has recently been posted on SSRN, see here. The paper is forthcoming in the Harvard Law Review. In the paper, the authors conduct a study of 1,350 people that watched the video of the car chase in Scott. The authors find that the majority of respondents agree with the majority that the officer’s behavior in ramming his cruiser into the fleeing suspect’s car was reasonable, but find that there are significant variations between different subgroups within the study. The authors also make some interesting points about judges and hidden bias. Orin Kerr has some interesting thoughts about the paper here and here, and Professor Braman responds to some of Orin’s critiques here.

In a paper that I have used for my own research, Jason Czarnezki (Marquette Law School), Bill Ford (John Marshall Law School), and Lori Ringhand (University of Kentucky College of Law) have posted on SSRN a paper entitled, “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court,” see here. This paper is forthcoming in a symposium issue of Constitutional Commentary. The authors analyze the relationship between what the Justices said during their confirmation hearings and their actual votes in four areas: originalism, stare decisis, legislative history, and the rights of criminal defendants. The authors found, not surprisingly (at least to me), that the content of statements at confirmation hearings tend not to be terribly predictive of actual behavior on the Court. This is an interesting piece, and as the authors seem to recognize, even more empirical work can and should be done in this area.

Full post as published by SCOTUSBLOG on April 05, 2008 (boomark / email).