Arguments based on overall win-loss ratios in the Court's decisio
n on some subject
VOLOKH at mail.law.ucla.edu
Mon Jan 21 18:16:41 PST 2002
In the Slippery Slopes article that I'm finishing up, I mention that
people -- commentators, legislators, and even lower court judges --
sometimes look to seeming (and admittedly imperfect) signals of the Court's
views rather than just to the Court's decisions as such.
I mention the occasional reliance on cert. denials, on the Court's
not discussing an argument that wasn't raised, and the win-loss ratio before
the Court -- e.g., "in the last X [commercial speech / affirmative action /
abortion / school funding] cases the Court has generally held for [the laws'
challengers / defenders], so this suggests that in the forthcoming such case
the Court will do the same, even though the case is not strictly controlled
by the precedents." My claim is not that these arguments are legally
unsound, but rather that they are examples of prediction based on admittedly
imperfect heuristics rather than on more traditional legal methods.
I'm looking for good examples of this last genre of argument -- the
argument based on recent win-loss record, even acknowledging that the next
case may not be like the preceding ones, and that the preceding ones were
far from a random sample. Any suggestions? Please pass them along to me
off-list, if possible, at volokh at law.ucla.edu . Thanks in advance,
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