Trivial Pursuit

[Mark Graber]

Here is real trivia.  What about Pernoli, the 1850ish case holding taht
the federal government was not obligated to obey the first amendment.  

Mark A. Graber

>>> DLaycock at law.utexas.edu 08/13/06 1:03 PM >>>
Here is a potential source of endless pointless debate.  Two professors
are working on a mathematical model to rank the importance of Supreme
Court decisions.  They want to test their model against the subjective
assessments of con law professors.  So they asked me and I assume many
others to rank order the twenty most important cases on a topic I knew
well.  My caveats, and my list, are below.  
 
Douglas Laycock
Alice McKean Young Regents Chair in Law
The University of Texas at Austin
 
Mailing Address:
Prof. Douglas Laycock
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109

[addressee deleted]
 
 I am at last responding to your letter of June 26, asking me to
list the twenty most important cases in my field, in order of
importance.  I have to emphasize that this is an essentially
arbitrary exercise, for many reasons.

 My topic is religious liberty.  It is a tight knit area with a
manageable number of Supreme Court cases.  But it could be divided
into three or four more homogenous subcategories, with some overlap;
if I did that, we would of course get different results.

How does the most important case in possible subcategory 1 compare
to the most important case in possible subcategory 2?  That depends
in part on how I rate the importance of the possible subcategories. 
It also depends on the clarity of the rules in each category; a
single case that clearly resolves an important issue is more
important than a case that introduces equally dramatic change but is
unclear and leaves much unresolved.  Citation frequency is likely to
depend on the number of cases the Court reviewed in each possible
subcategory.

Some cases are of great symbolic importance but little authority. 
In this field, Everson v. Board of Education and Lemon v.
Kurtzman are such cases.  They are famous and much cited but control
almost nothing; Lemon does not make my top 20.  For this and other
reasons, citation networks may measure something different from
authoritativeness.

A case may  be very often cited but now overruled.  Lemon is not
there yet, but it's close.  So are Sherbert v. Verner and
Wisconsin v. Yoder.  These three cases now stand for something very
different from, and less than, what they originally stood for.

Cases are important for different reasons, which are often
incommensurable.  Cantwell v. Connecticut is a confused opinion on
its not very important facts, but it incorporates the Free Exercise
Clause into the Fourteenth Amendment.  How does that compare to an
opinion that clearly resolves a dispute over a much more important
and recurring fact pattern?

West Virginia v. Barnette is important at least as much for its
eloquence as for its rule, and cited mostly for its famous
quotations.  How does that compare to authority on the merits?

How does a statutory opinion on important facts compare to a
constitutional opinion on less important facts?  How does a clear and
decisive statutory opinion compare to a muddled constitutional
opinion?

Some cases are very important to religious liberty but are decided
on free speech, freedom of association, the scope of Congressional
power, or some other related ground.

And so on and on.  You may hope that your mathematical methods will
cut through all this qualitative uncertainty and reveal a true order
of importance.  Maybe it will.  But it may also cumulate distinct
reasons for citation that are not additive. 

Probably you have thought about these problems.  But I had to
mention them before give you a list that, in my view, took longer to
produce than it is worth.  With those caveats:

Topic:  religious liberty

  1.  Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

  2.  Employment Division v. Smith, 494 U.S. 872 (1990)

  3.  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520 (1993)

  4.  School District v. Schempp, 374 U.S. 203 (1963)

  5.  Lee v. Weisman, 505 U.S. 577 (1992)

  6.  Engel v. Vitale, 370 U.S. 421 (1962)

  7.  West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

  8.  Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 126
S.Ct. 1211 (2006)

  9.  Locke v. Davey, 540 U.S. 712 (2004

  10. Boy Scouts v. Dale, 530 U.S. 640 (2000)

  11. Board of Education v. Mergens, 496 U.S. 226 (1990)

  12. Cantwell v. Connecticut, 310 U.S. 246 (1940)

  13. Good News Club v. Milford Central School, 533 U.S. 98 (2001)

  14. City of Boerne v. Flores, 521 U.S. 507 (1997)

  15. Van Orden v. Perry, 125 S.Ct 2854 (2005)

  16. Cutter v. Wilkinson, 544 U.S. 709 (2005)

  17. Jones v. Wolf, 443 U.S. 595 (1979)

  18. Everson v. Board of Education, 330 U.S. 1 (1947)

  19. Wisconsin v. Yoder, 406 U.S. 205 (1972)

  20. Sherbert v. Verner, 374 U.S. 398 (1963)




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