Predictions of the 10th Justice: Citizens United v. FEC (Hilary Movie Case)

Welcome to the first installment of Predictions of the 10th Justice, brought to you by, the premier Supreme Court fantasy league, has over 1,300 members, who have made predictions on all cases currently pending before the Supreme Court. In this feature, we analyze these predictions, and try to explain how the Supreme Court will resolve top cases.

The first case we will look at is Citizens United v. Federal Election Commission, commonly known as the Hillary Movie case.

Citizens United Overall Predictions

Out of 286 predictions, 192 members (67%) predicted that the Supreme Court will likely reverse the lower court’s decision regarding the case, and 94 members (33%) predicted that the Court will affirm the lower court’s decisions. Next we will explore the decision vote distributions and how the Justices will vote.

Voting Distribution Frequencies

On this bar graph, the 9-0 and 8-1 Affirm splits each garnered less than 5 votes, along with 7-2, 8-1, and 9-0 Reverse. This graph reinforces the predicted outcome from the first chart.  Most members are predicting a 5-4 Reverse, while those predicting an Affirm were more moderately split,  slightly favoring a 5-4 split over a 6-3 split. Overall, the 10th Justice predicts a 5-4 decision reversing the lower courts holding.

But how will each Justice vote? Predictions, after the jump.

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Academic Random Sentence Generator. Professors To Lobby Against It

Read these sentences and let me know what you think?

  • The experience of representational familiarity invests itself in the illusion of the parent-child dynamic.
  • The representational validity of post-capitalist hegemony fails to penetrate the myths obscuring the totalization of the culture industry.
  • The logic of teleological narrative thematizes the cooptation of disciplinary boundaries.

Are they written by some pointy-headed academic, or by a random sentence generator? The University of Chicago has created a Random Academic Sentence Generator (H/T Glenn R. on Facebook).

Soon, Professors will feel threatened by the ability of this generator to make perfectly rational academic-style sentences, without the years of schooling and prestige. Like the Candlemakers Petition by Bastiat, expect academics to come out against this fantastic service.

2nd Circuit Upholds Ban on “New Parades” down 5th Avenue, Not Content-Based Regulation

The Second Circuit decided INTERNATIONAL ACTION CENTER v. CITY OF NEW YORK H/T How Appealing. New York City Bans new parades down 5th avenue:

a City regulation (the “Fifth Avenue Rule”) — that began as an informal policy in the 1970s and was codified in 2001 — bans any “new” parades on Fifth Avenue.

A group challenged this ban on content-based regulation, as it “discriminat[es] against parades related to current events.”

The Court rejected this argument:

In contrast, the Fifth Avenue Rule does not seek to regulate messages or distinguish between different types of speech. The Fifth Avenue Rule applies to all “new” parades, irrespective of their content. There is nothing in the record to suggest that the City has banned new parades on Fifth Avenue because it is seeking to restrict speech relating to current  events.

Although the Fifth Avenue Rule may indeed have “an incidental effect on some speakers or messages but not others,” that is true of many content-neutral regulations. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Such an incidental effect does not convert a content-neutral regulation into a  content-based one.

And in an interesting panel arrangement, the court noted that:

  1. * Honorable Denny Chin, United States District Judge for
    the Southern District of New York, sitting by designation. The
    Honorable Sonia Sotomayor, originally a member of this panel, was
    elevated to the United States Supreme Court on August 8, 2009.
    The two remaining members of the panel, who are in agreement,
    have decided this appeal. See 28 U.S.C. § 46(b); Local Rule §

Professor Richard Epstein on NRA v. Chicago

Professor Richard Epstein posted a new article on SSRN, forthcoming in the Chicago Law Review, titled NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?

In NRA v. City of Chicago, Judge Easterbrook held that the Second Amendment, which protects the right to keep and bear arms, did not bind state governments. This article examines the reasoning that he uses to reach that result, which it contrasts with the style of argumentation that led to the opposite conclusion in Judge O’Scannlain’s decision in Norkdye v. King. Easterbrook’s approach emphasized the imperative need for lower court deference to the Supreme Court’s explicit Reconstruction Era holdings that the Second Amendment does not bind the states, even after the Supreme Court’s game-changing decision in District of Columbia v. Heller and thus gave only scant attention to the various historical authorities that O’Scannlain referred to in Nordyke. On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.

Only scant discussion of the current Supreme Court case, and the Privileges or Immunities Clause, but it is a nice, short read.

Google Closing in on WestLaw, Lexis, Now Allows Searches of Legal Opinions and Law Journals

West and Google, start counting your duopoly days. TaxProfBlog reports that Google Scholar now allows you to search legal opinions and law journals.

I just did a couple quick searches, and you can search for cases by case name, and by citation. Extremely quick, efficient, and free. And it doesn’t just link to FindLaw or Cornell. It actually has an original, full text version. I just entered in a few key Supreme Court cases, and a few prominent Circuit cases, and they were all in Google. Pretty cool. Plus, it has a rough Shepardizing feature, called “Cited By.” I am not sure how broad the Shepardizing is, but it seems to know all citations in Supreme and recent Appellate cases.

Coming soon to a law school near you; a Google Table with student representatives handing out cool Google Office supplies and tasty treats.

And the ABA is getting in on the action as well. They just launched Media Alerts on Federal Courts of Appeals.

The website, which officially launches on Wednesday, now covers the U.S. Courts of Appeals for the 3rd, 5th and 9th Circuits. The plan is to add eventually all of the circuits.

About 60,000 cases are filed every year in the federal courts of appeals, McKeown told the ABA Journal. “Most courts have very good websites, but there is a lot of information out there, so this provides a special niche,” she says. “There is a certain needle-in-the-haystack element for someone to go through them every day in every jurisdiction of interest to find cases.”

“Our view is that fair and accurate reporting about the courts is important, both for the public and also in order to emphasize judicial independence,” says McKeown, whose three-year term as chair of the ABA Standing Committee on Federal Judicial Improvements ended in August.

Record Number of Students Taking LSAT, Yet Law School Isn’t Worth The Price. Not good.

Yesterday I blogged about how law school just wasn’t worth the high cost. Today TaxProfBlog reports that a record number of students took the LSAT! Big Law, We Have a Problem:

The numbers are out, and they are huge. On September 26th, more students took the LSAT than have ever taken a single administration of the LSAT in the history of the exam.



There is definitely an asymmetry of information here between those applying to Law School and those suffering with the rising costs and difficult employment situation. Potential applicants should be dropping, not rising.

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Gura Files Petitioner’s Brief in McDonald, Spends 7 Pages on Due Process, The Rest on Privileges or Immunities

Check out Alan Gura’s petitioner brief to the Supreme Court in McDonald v. Chicago

Lyle Denniston has this summary from SCOTUSBlog:

Reflecting the lawyers’ view that their best chance is to rely upon the privileges clause of the Fourteenth Amendment, only seven pages of their 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.

In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down three of its prior rulings: the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity — and two decisions limiting the Second Amendment to a restriction only on federal laws: U.S. v. Cruikshank in 1876 and Presser v. Illinois in 1886.  “Faced with a clear conflict between precedent and the Constitution, this Court should uphold the Constitution,” the brief argued.

The Slaughterhouse precedent, “and its unavoidable progency, Cruikshank and Presser,” the brief said, “established that the States could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding that [the Fourteenth Amendment] Section One’s clear textual command to the contrary.”

I just skimmed the brief, and I am very, very impressed by Gura’s approach. As Ilya Shapiro and I discuss at great length in our forthcoming article, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, the Privileges or Immunities Clause is a vastly superior means for incorporating the Second Amendment.

I’ll blog about this some more later.

Online Job Applications For Federal Law Clerk Jobs Rise 66 Percent

No surprise here. From

A total of 401,576 electronic applications from lawyers seeking jobs as federal court law clerks were received in fiscal year 2009, a 66 percent increase from the 241,529 applications received in 2008 via the Online System for Clerkship Application and Review (OSCAR).

The applications were filed by 10,722 applicants who were competing for the 1,244 clerkship positions that were posted between October 1, 2008 and September 30, 2009.

About two-thirds of all federal judges participate in the OSCAR program, electing to maintain a judge profile, post a clerkship position and accept applications, or advertise that there are not hiring law clerks.

Fifty-two percent of the applicants that used OSCAR during FY 2009 were law school graduates, and 48 percent were third-year law students. But 68 percent of the 401,576 applications were generated by third-year law students.

OSCAR takes what was a paper-heavy – and expensive – process and puts it online. Applicants for law clerk positions can pull together and submit online applications complete with resumes, cover letters, transcripts, and writing samples.

The number of applications filed via OSCAR has increased each year since its introduction in FY 2005, when 94,693 applications were handled. The totals since have been 174,363 in 2006; 180,832 in 2007; 241,529 in 2008; and 401,576 in 2009.

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Interesting New Article: Formalism and Realism in Ruins (Mapping the Logic of Collapse)

From SSRN:  Formalism and Realism in Ruins (Mapping the Logic of Collapse) (H/T Legal Theory Blog)

After laying out a conventional account of the formalism vs. realism debates, this Article argues that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented – that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law’s empire. We live thus amidst the ruins of formalism and realism. The disputes between these two great determinations of American law continue today, but usually in more localized or circumscribed forms. We see versions of the disputes, for instance, in the stylized disagreements over the desired form of judicial doctrines (rules vs. standards); or the best rendition of key political values like equality (formal vs. substantive); or the proper mode of judicial interpretation (textual vs. purposive). Here too the arguments that comprise the localized variants of the dispute remain inconclusive. The Article concludes by mapping “the logics of collapse” – specifically, some critical moves that undermine the rhetorical and intellectual force of the formalism vs. realism disputes and their localized variants. The aims here are several. First, the ability to deploy the critical moves helps with analysis. The critical moves help show how the arguments are constructed in the first place and how they are rhetorically and intellectually compromised. Second, and relatedly, the critical moves allow us to avoid being taken in by the formalism vs. realism arguments and their localized variants. Third, the aim is to show how our formalist and realist argumentation has already been surpassed by a legal “logic” that undermines the cogency of that argumentation.

I just received Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging so these two should make for interesting reading.

@SCOTUS Srsly @SReinhardt, not again, get it right! Epic Fail! Reinhardt reversed 3rd time in same case.

I’ve joked that the Supreme Court needs to get a Twitter Account. If so, today would be the ultimate time to tweet:

@SCOTUS Srsly @SReinhardt, not again, get it right! Epic Fail!

According to Orin Kerr at Volokh, Judge Reinhardt has actually been reversed 3 times on the same case:

As I understand the history, Judge Reinhardt first authored an opinion overturning Belmontes’ death sentence in Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003).  The Supreme Court granted, vacated, and remanded in light of Brown v. Payton, 544 U.S. 133 (2005).   To be fair, that one wasn’t really a direct reversal of Reinhardt: He wasn’t on the Ninth Circuit decision reversed in Brown, so the first reversal was only to account for the Supreme Court’s clarification of the law in Brown.  On remand, Judge Reinhardt wrote a second opinion overturning Belmontes’ death sentence in Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005).  The Supreme Court took that case and reversed in  Ayers v. Belmontes, 549 U.S. 7 (2006).   Judge Reinhardt then wrote a third opinion overturning Belmontes’ death sentence in Belmontes v. Ayers, 529 .23d 834 (9th Cir. 2008), which the Supreme Court reversed 9–0 in a per curiam decision today in Wong v. Belmontes.

Epic Fail!

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