Academic Says USSC misused research in exclusionary rule decision

[Mark Tushnet]

Perhaps this thread could shift to a discussion of the use of social science
evidence in the separate opinions in Kansas v. MArsh.
-- 
Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138


Quoting Frank Cross <crossf at mail.utexas.edu>:

>
> Well, I would think that justices should read what they cite, though I
> suspect they often pick things up from briefs.  I suspect Scalia's clerks
> of serious sloppiness here (and I presume they could have found the
> professionalism point from a source without the causation problem).  I
> haven't gone back to the briefs, and it would be interesting to see how the
> book was cited there.
>
> But my point isn't that Scalia deliberately misrepresented the source,
> rather that he wanted to reach a given conclusion and rounded up supportive
> evidence without much care given as to the validity of that evidence or at
> least much critical scrutiny to the evidence underlying his claim.
>
>
> At 02:30 PM 6/26/2006, earl maltz wrote:
> >So is the claim that Scalia a) actually read the cited source, rather than
> >simply picking it up from a brief (doubtful) and b)
> >DELIBERATELY  misstated the import of the study (wildly implausible)?
> >
> >At 01:48 PM 6/26/2006 -0500, Frank Cross wrote:
> >
> >>I certainly don't believe it mattered in terms of the outcome.  We, or at
> >>least I, care because it evidences that these decisions are not made for
> >>the reasons stated in the opinions.
> >>
> >>At 01:38 PM 6/26/2006, earl maltz wrote:
> >>>I'd like to take a poll here.  Does anybody on the list believe that the
> >>>holding in the case was actually effected by whatever Professor Walker
> >>>said in some book?  If so, I have a bridge in Brooklyn that I would like
> >>>to sell that person.  And if not, why do we care if Scalia got the
> >>>citation right?
> >>>
> >>>At 01:58 PM 6/26/2006 -0400, Trevor Morrison wrote:
> >>>>Well, one thing lawyers are admonished not to do is cite a case that
> >>>>contains good language for them but whose holding goes the other way,
> >>>>without at least acknowledging the adverse holding.  I've seen more
> >>>>than one circuit judge upbraid lawyers for violating this rule.  Good
> >>>>lawyers appearing before the Supreme Court almost always follow it.
> >>>>
> >>>>To be sure, academic writings aren't the same as cases, and Supreme
> >>>>Court justices aren't the same as counsel.  But if we were to analogize
> >>>>from the lawyers' rule, what would we say about Justice Scalia's use of
> >>>>Professor Walker's work?
> >>>>
> >>>>Trevor Morrison
> >>>>
> >>>>
> >>>>At 11:46 AM 6/26/2006, Nelson Lund wrote:
> >>>>>I don't see any evidence in Walker's op-ed to support the proposition
> >>>>>that Scalia "twisted" Walker's argument or engaged in the "misuse of
> >>>>>evidence." Apparently, Scalia cited Walker for a factual proposition
> >>>>>that Walker does not disavow but rather reaffirms. Scalia apparently
> >>>>>never claimed that Walker would agree with anything else that Scalia
> >>>>>said, or with the outcome of the case. So who is "twisting" whose
> >>>>>arguments, and "misusing evidence"?
> >>>>>
> >>>>>Nelson Lund
> >>>>>George Mason
> >>>>>
> >>>>>
> >>>>>
> >>>>>Frank Cross wrote:
> >>>>>
> >>>>>>But at least he was cited
> >>>>>>http://www.latimes.com/news/opinion/la-oe-walker25jun25,0,2945743.story
> >>>>>>_______________________________________________
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> >>
> >>**********************************************************
> >>
> >>Frank Cross
> >>McCombs School of Business
> >>The University of Texas at Austin
> >>1 University Station B6000
> >>Austin, TX 78712-1178
> >
> >**********************************************************
> >
> >Frank Cross
> >McCombs School of Business
> >The University of Texas at Austin
> >1 University Station B6000
> >Austin, TX 78712-1178
> _______________________________________________
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