Trivial Pursuit

[paul-finkelman at utulsa.edu]

Permoli is interesting for the politics of New Orleans but otherwise it is a reaffirmation of Barron, that the BoR does not apply to the states.

Paul Finkelman

Quoting Mark Graber <mgraber at gvpt.umd.edu>:

> 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)
> 
> 
> 
> 
> ----- End forwarded message -----
> 
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Paul Finkelman
Chapman Distinguished Professor of Law
Univ. of Tulsa College of Law
2120 East 4th Place
Tulsa OK  74104-3189

Phone: 918-631-3706
Fax:    918-631-2194