Legal Realism

[Volokh, Eugene]

        I agree with Sandy that sometimes we just *know* which way the
decision will come down, doctrine be damned.

        But for a bit of realism about realism, let me ask:  Just how
good are our track records here?  I'll tell you:  I was *positive* that
Lopez and City of Boerne would come down in the opposite direction; as
to City of Boerne, I'm on the e-record with my error.  I didn't expect
Printz to come out the way it did, either.

        Did most lawprofs in 1964 "realistically" expect that the Court
would sweep away centuries of libel law, especially given its then
fairly recent dicta about how of course libel is constitutionally
unprotected?  Perhaps they did -- maybe there was some signalling of
which I'm unware -- but I wonder.  Likewise, did most people expect the
1989 Court to hold 9-0 that dial-a-porn was constitutionally protected
(maybe there would have been some such guess as to the result, but I'm
not sure about the unanimity)?

        Now maybe the incest case is much more obvious, but I wonder how
good we really are at predicting which way judges will jump on these
things.


> -----Original Message-----
> From: Sanford Levinson [SMTP:slevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Tuesday, March 16, 1999 12:28 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: privacy and incest
>
> David Cruz writes;
>
> At 09:33 PM 03/15/1999 -0800, you wrote:
> >Although one might try to distinguish it if the issue actually
> arises, the
> >recent opinion for the Georgia Supreme Court in State v. Powell
> (striking
> >down Georgia's infamous sodomy law) is written in a way that would
> extend
> >to consensual adult incest, since it found that the state
> constitutional
> >right to privacy protects private, consensual (hence adult),
> noncommercial
> >sexual conduct.
> >
> I suppose that the discussion boils down to Legal Realism 101:  If
> asked to
> bet, whom would we put our money on  as between the incestuous (adult)
> couple and the state seeking to punish them?  Is there any state in
> which
> you'd put your money on the couple?
>
> Sandy